Ditech Financial, LLC v. Kevin Snyder ( 2022 )

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
Ditech Financial, LLC, Respondent,
v.
Kevin G. Snyder, individually and as Personal
Representative of the Estate of Mary Snyder, Appellant.
Appellate Case No. 2019-000575
Appeal From Charleston County
Mikell R. Scarborough, Master-in-Equity
Unpublished Opinion No. 2022-UP-308
Heard February 10, 2022 – Filed July 20, 2022
AFFIRMED
Jason Scott Luck, of Luck VI Ltd. Co. d/b/a Jason Scott
Luck, Attorney at Law, of Bennettsville, for Appellant.
George Benjamin Milam and Jonathan Edward Schulz,
both of Bradley Arant Boult Cummings, LLP, of
Charlotte, North Carolina; and Michael Casin Griffin, of
Waxhaw, North Carolina, all for Respondent.
PER CURIAM: In this foreclosure action, Kevin G. Snyder appeals the
master-in-equity's (the master's) orders granting Ditech Financial, LLC's (Ditech's)
motion to amend the case caption, denying his motion to compel discovery, and
granting partial summary judgment in favor of Ditech; and the master's order and
judgment of foreclosure and sale. Snyder argues the master erred in finding Ditech
did not violate the South Carolina Supreme Court's Administrative Order on
Mortgage Foreclosure Actions 1 (the Administrative Order); denying Snyder's
motion to compel discovery when Ditech waived its objections and the materials
sought were discoverable under South Carolina law; granting Ditech's motion to
amend when Ditech failed to provide Snyder with notice of the motion and the
amendment was unsupported by the record; striking Snyder's attorney preference
statute2 defense; and, proceeding with the final foreclosure hearing after Snyder
filed his initial notice of appeal. We affirm.
FACTS AND PROCEDURAL HISTORY
This case arises out of a mortgage foreclosure action brought by Ditech against
Snyder. In April 2005, Snyder executed a promissory note (the Note) payable to
Gateway Funding Diversified Mortgage Services L.P. (Gateway) for $135,000, at
an interest rate of 7.5% per annum. Along with the Note, Snyder executed an
"Attorney/Insurance Preference Form." The Note was subsequently endorsed to
Countrywide Home Loans, Inc. (Countrywide Inc.) and thereafter, endorsed in
blank. To secure the Note, Snyder and his wife, Mary Snyder (collectively, the
Snyders), executed a real estate mortgage encumbering real property (the
Mortgage). 3 The Note came into default for Snyder's failure to make any payments
in September 2008, and all subsequent months.
In April 2010, BAC Home Loans Servicing, LP (BAC) 4 sent Snyder a notice of
intent to accelerate. Thereafter, in September 2010, BAC filed a foreclosure action
against Snyder, alleging the Note and Mortgage came into default in September
2008. 5 In December 2012, BAC filed and served upon Snyder a notice of
1
In re Mortg. Foreclosure Actions, 396 S.C. 209, 720 S.E.2d 909 (2011).
2
S.C. Code Ann. § 37-10-102 (2015) (Attorney Preference Statute).
3
Between 2007 and 2013, the Mortgage was transferred: in September 2007,
Gateway assigned it to Countrywide Inc.; in January 2009, Countrywide Inc.
attempted to assign it to Countrywide Home Loans Servicing, LP (Countrywide
Servicing); and in June 2013, Countrywide Inc. assigned it to Green Tree Servicing
LLC (Green Tree).
4
Countrywide Servicing became BAC by virtue of a name change.
5
BAC amended its complaint in October 2010, to include Mary as a defendant.
Mary passed away in November 2015, and the parties consented to substituting
foreclosure intervention pursuant to the Administrative Order. Because Snyder
failed to submit the documents BAC required to consider loan modification, BAC
filed and served upon Snyder a notice of denial of loan modification or other
means of loss mitigation in April 2013.
In May 2013, Snyder's counsel filed and served a notice of appearance directing
that all correspondence concerning the foreclosure matter be served at an address
in Charleston, South Carolina. Snyder's counsel gave additional notice of two
address changes in March 2015 and December 2016.
On June 3, 2013, Snyder filed an answer and counterclaims, asserting several
defenses against BAC, including violation of the Administrative Order, violation
of the Attorney Preference Statute as to Mary, and claiming BAC lacked standing
to bring the foreclosure action. Snyder alleged he was entitled to setoff or
recoupment for violation of the Attorney Preference Statute. Snyder asserted
several counterclaims, including civil compensatory contempt for failure to comply
with the Administrative Order and quiet title, seeking dismissal of the complaint
based on civil compensatory contempt and quiet title. Additionally, Snyder alleged
BAC engaged in unconscionable conduct that was "both described in [the
pleadings] and to be determined after a reasonable period of discovery," and he
asserted this barred BAC's claims.
In June 2013, Green Tree notified Snyder that it had assumed the servicing of the
Mortgage and the total amount due and owing on the Note was $204,798.56.
Thereafter, Snyder's counsel contacted Green Tree to inquire about Snyder's
options for foreclosure modification or intervention. In August 2013, Green Tree's
counsel provided Snyder's counsel with a loss mitigation package and gave Snyder
thirty days to provide required forms and documents. In October 2013, the master
issued an order staying the proceeding pending foreclosure intervention.
In December 2014, Green Tree approved a trial modification plan for Snyder,
which he rejected in March 2015. Foreclosure intervention efforts on the part of
Snyder, Green Tree, and Ditech 6 continued through June 2017, when Ditech
ultimately determined Snyder was ineligible for loan modification.
In response to Snyder's second set of interrogatories and requests to produce,
Green Tree argued, inter alia, the requests were overbroad and irrelevant. In
Snyder, individually and as personal representative of the Estate of Mary Snyder,
as defendant in December 2018.
6
Green Tree and Ditech merged in August 2015, and became known as Ditech.
November 2018, Snyder filed a motion to compel discovery, arguing the materials
requested were relevant; obtaining them would not burden Green Tree; and, the
requested attorney's fee agreement was not privileged. Snyder sought several
documents in connection with a Federal Trade Commission (FTC) action filed
against Green Tree in the United States District Court of the District of Minnesota.
Specifically, he requested accounting records "showing the revenues from all
goods or services sold, all costs incurred in generating those revenues, and the
resulting net profit or loss"; personnel records for four specific Green Tree
employees, all employees who interacted with the Snyders and their attorneys, and
those employees who reviewed the Snyders' loss mitigation applications; and,
copies of all scripts and training materials related to Green Tree's collection of
debts. The employee records Snyder sought included employees' addresses,
telephone numbers, job titles, dates of service, and reasons for termination. After
hearing the motion, the master summarily denied the Snyders' motion to compel by
order dated March 18, 2019.
In February 2019, Ditech filed for Chapter 11 bankruptcy in the United States
Bankruptcy Court for the Southern District of New York. On March 1, 2019,
Ditech filed a notice of bankruptcy filing and imposition of automatic stay and
amended its filing in May 2019. The bankruptcy court issued an order granting
limited relief from the automatic stay to permit actions "for the sole purpose of
defending, unwinding, or otherwise enjoining or precluding any
foreclosure . . . and [those that] do not have an adverse effect on any of Ditech's
assets." The order specifically provided that claims against Ditech seeking
monetary relief of any kind were stayed.
On March 11, 2019, Ditech moved for summary judgment in the foreclosure
action. As to Snyder's counterclaim for quiet title, Ditech argued that, to the extent
Snyder alleged the Mortgage was invalid because Mary did not sign an attorney
preference form, the claim failed because Mary was not a "borrower" under section
37-10-102. As to Snyder's claim for civil compensatory contempt, Ditech argued
that it complied with the Administrative Order; compliance with the order was a
condition precedent to a foreclosure action; and, the Administrative Order did not
create a private right of action or form the basis of a counterclaim.
Snyder moved for partial summary judgment as to his claims for civil
compensatory contempt and quiet title. He argued Ditech failed to act in good
faith in violation of the Administrative Order and requested the master strike
Ditech's amended complaint and reply to Snyder's counterclaims. Additionally,
Snyder sought relief either by dissolution of Ditech's lien or rescission of the Note
and Mortgage. In the alternative, Snyder requested the master strike Ditech's
demand for damages and deficiency judgment due to the unnecessary delay in
proceedings resulting from Ditech's consideration of Snyder's loan modification
application.
The master heard the motions for summary judgment on March 18, 2019. In its
March 27, 2019 order, the master found Snyder's counterclaim for quiet title was
not stayed by the bankruptcy filing but his counterclaim for civil compensatory
contempt was stayed to the extent it sought a monetary award. The master further
found Ditech acted in good faith and complied with the Administrative Order and
granted partial summary judgment in favor of Ditech as to the non-stayed portions
of Snyder's claim for civil compensatory contempt. Finally, the master struck
Snyder's Attorney Preference Statute defense as to Mary, concluding she was not a
borrower within the meaning of section 37-10-102. The master scheduled the trial
of Ditech's foreclosure claim and Snyder's quiet title claim for April 1, 2019.
Snyder filed a notice of appeal with this court on April 1, 2019, appealing the
master's March 12, 2014 order amending the caption, March 18, 2019 order
denying Snyder's motion to compel, and March 27, 2019 summary judgment order.
At the foreclosure hearing, Ditech conceded it would be improper for the master to
schedule a foreclosure sale before this court determined whether Snyder's appeal
could proceed. Ditech emphasized it was only asking the master to decide all of
the factual and legal issues that were not determined at the summary judgment
stage so that all of the issues could be raised together on appeal.
The master issued an order and judgment of foreclosure and sale on April 26,
2019. The master determined he had the authority to proceed with the foreclosure
action because it was not stayed by Snyder's initial notice of appeal. He found his
March 12, 18, and 27 orders were interlocutory and therefore Snyder's premature
appeal did not stay the foreclosure proceedings. Alternatively, the master
determined he retained jurisdiction over matters not affected by the appeal
pursuant to Rules 205 and 241, SCACR. The master found the Note was in default
as a result of Snyder's failure to make any monthly payments due for September 1,
2008, and all subsequent months. He determined the amount due and owing on the
Note totaled $293,930.69, which included $137,020.25 in principal; $109,616.64
in accrued interest; $39,816.39 in escrow advances; and, $6,626.25 in attorney's
fees. Ditech waived its right to a deficiency judgment. The master concluded
Snyder failed to establish he was entitled to the remedy of quiet title because
Ditech possessed the Note endorsed in blank. The master reiterated Ditech met the
requirements of the Administrative Order and Snyder failed to establish any claims
or defenses—legal or equitable—for relief against Ditech.
On May 2, 2019, Snyder filed a motion for supersedeas with the master, seeking to
"suspend any and all activity" in the foreclosure action, particularly the sale of the
real property. The master granted the supersedeas motion and set the bond at
$25,000. Snyder then filed an amended notice of appeal with this court, appealing
the master's April 23, 2019 order and judgment of foreclosure and sale.
Subsequently, Snyder filed a petition for a writ of supersedeas to waive the bond or
set it at a nominal amount, which this court denied. On November 10, 2021, the
master issued an order of sale and disbursement for $247,104.
STANDARD OF REVIEW
"A mortgage foreclosure is an action in equity." U.S. Bank Tr. Nat'l Ass'n v. Bell,
385 S.C. 364, 373, 684 S.E.2d 199, 204 (Ct. App. 2009) (quoting Hayne Fed.
Credit Union v. Bailey, 327 S.C. 242, 248, 489 S.E.2d 472, 475 (1997)). "The
appellate court's standard of review in equitable matters is our own view of the
preponderance of the evidence." Horry County v. Ray, 382 S.C. 76, 80, 674 S.E.2d
519, 522 (Ct. App. 2009). "A legal question in an equity case receives review as in
law." Sloan v. Greenville County, 356 S.C. 531, 546, 590 S.E.2d 338, 346 (Ct.
App. 2003). "Because questions of law may be decided with no particular
deference to the [master-in-equity], this court may correct errors of law in both
legal and equitable actions." Bell, 385 S.C. at 373, 684 S.E.2d at 204.
ISSUES ON APPEAL
1. Did the master err in finding Ditech did not violate the Administrative Order
when Ditech's and its predecessor's misconduct delayed the foreclosure
proceedings?
2. Did the master abuse his discretion in denying Snyder's motion to compel
discovery when Ditech waived its objections and the materials sought were
discoverable under South Carolina law?
3. Did the master abuse his discretion in granting Ditech's March 20, 2014 motion
to amend when Ditech failed to provide Snyder notice of its motion and the
motion was unsupported by the record?
4. Did the master err in striking Snyder's Attorney Preference Statute defense?
5. Did the master abuse his discretion in proceeding with the final foreclosure
hearing after Snyder filed his initial notice of appeal?
LAW AND ANALYSIS
I. The Administrative Order
Snyder argues the record contained a scintilla of evidence showing Ditech and its
predecessors violated the Administrative Order by failing to act in good faith
during the foreclosure intervention process. We disagree.
"When reviewing an order granting summary judgment, the appellate court applies
the same standard as the trial court." David v. McLeod Reg'l Med. Ctr., 367 S.C.
242, 247, 626 S.E.2d 1, 3 (2006). "Summary judgment is appropriate when there
is no genuine issue of material fact such that the moving party must prevail as a
matter of law." Id.; see also Rule 56(c), SCRCP. "In determining whether any
triable issues of fact exist, the court must view the evidence and all reasonable
inferences that may be drawn from the evidence in the light most favorable to the
non-moving party." David, 367 S.C. at 247, 625 S.E.2d at 3. "Under Rule 56(c),
the party seeking summary judgment has the initial responsibility of demonstrating
the absence of a genuine issue of material fact." Baughman v. Am. Tel. & Tel. Co.,
306 S.C. 101, 115, 410 S.E.2d 537, 545 (1991). "Once [the] moving party carries
its initial burden, [the] opposing party must, under Rule 56(e),[ SCRCP,] 'do more
than simply show that there is some metaphysical doubt as to the material facts' but
'must come forward with "specific facts showing that there is a genuine issue for
trial."'" Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986)).
The Administrative Order states in pertinent part:
In all mortgage foreclosure actions . . . before any merits
hearing in the case, or if an order of foreclosure has been
entered, before any foreclosure sale, the Mortgagee shall,
through its attorney of record, file with the court and
serve upon every Mortgagor a notice of the Mortgagor's
right to foreclosure intervention. All proceedings in the
foreclosure action shall be stayed until completion of
such foreclosure intervention.
No foreclosure hearing or foreclosure sale may be held in
the foreclosure action until the Mortgagee's attorney
certifies the following:
(a) that the Mortgagor has been served with a
notice of the Mortgagor's right to foreclosure
intervention for the purpose of seeking a resolution
of the foreclosure action by loan modification or
other means of loss mitigation;
(b) that the Mortgagee, or its designated agent, has
received and examined all documents and records
required to be submitted by the Mortgagor to
evaluate eligibility for foreclosure intervention;
(c) that the Mortgagor has been afforded a full and
fair opportunity to submit any other information or
data pertaining to the Mortgagor's loan or personal
circumstances for consideration by the Mortgagee;
(d) that after completion of the foreclosure
intervention process, the Mortgagor does not
qualify for loan modification or other means of
loss mitigation, in accordance with any standards,
rules or guidelines applicable to the mortgage loan,
and the parties have been unable to reach any other
agreement concerning the foreclosure process; and,
(e) that notice of the denial of loan modification or
other means of loss mitigation has been served on
the Mortgagor by mailing such notice to all known
addresses of the Mortgagor; provided, that such
notice shall also state that the Mortgagor has 30
days from the date of mailing of notice of denial of
relief to file and serve an answer or other response
to the Mortgagee's summons and complaint.
If within thirty days after having been served with notice
of the Mortgagor's rights, the Mortgagor has failed,
refused, or voluntarily elected not to participate in any
foreclosure intervention process, the Mortgagee, through
its attorney, shall certify that fact to the Court, and the
foreclosure action may proceed.
In re Mortg. Foreclosure Actions, 396 S.C. at 211-12, 720 S.E.2d at 909. The
Administrative Order further provides that in all mortgage foreclosure actions:
Throughout the foreclosure intervention process and the
foreclosure action, the Mortgagee shall communicate
with and otherwise deal with the Mortgagor through the
Mortgagee's attorney, and the Mortgagor shall have the
right to deal with the Mortgagee through the Mortgagee's
attorney. This includes, without limitation, submission
of all required information, negotiations, and
consummation of any loan modification or other loss
mitigation agreement. If the Mortgagor is represented by
an attorney, then the Mortgagee shall communicate with
and otherwise deal with the Mortgagor through the
Mortgagor's attorney.
....
The Court having jurisdiction over the foreclosure
action shall hear and determine any dispute concerning
any party's compliance with this order, including without
limitation, the failure of any party to act in good faith in
complying with the terms of this order. In the event the
Court determines that any party to the foreclosure action,
or their acting agent, has failed to comply with the terms
of this order, or has not attempted to reach an agreement
for foreclosure intervention in good faith, the Court may,
in its discretion, impose such sanctions as it determines
to be reasonable and just under the circumstances,
including without limitation, the assessment of
reasonable attorneys' fees and costs against the culpable
party.
Id. at 213-14, 720 S.E.2d 908, 909-10 (emphasis added).
We hold the master did not err in granting summary judgment as to this issue.
Viewing the facts in the light most favorable to Snyder, we conclude there was no
genuine issue as to any material fact concerning whether Ditech complied with the
Administrative Order. Snyder supplied no evidence to show Ditech or its
predecessors failed to comply with the Administrative Order. Rather, the record
shows BAC filed and served upon the Snyders a notice of foreclosure intervention
and when the Snyders failed to respond to the notice, BAC filed and served the
Snyders with a notice of denial of loan modification. These actions complied with
the Administrative Order. See id. at 211-12, 720 S.E.2d at 909. Subsequently,
Snyder's counsel contacted Green Tree in June 2013, inquiring about the Snyders'
options for foreclosure modification or intervention. The foreclosure intervention
process continued for four years, even after Snyder rejected Ditech's modification
terms in March 2015. We acknowledge evidence showed Ditech and its
predecessors sent correspondence to the wrong address on five occasions during
this period and directly contacted Snyder on one occasion after being notified he
was represented by counsel. However, considering Snyder's counsel's three
changes of address, Green Tree's merger with Ditech, and the significant amount of
correspondence exchanged between the parties during this period, we find the
evidence does not demonstrate Ditech's actions constituted a failure to act in good
faith during the foreclosure intervention process. In addition, we find Snyder
failed to demonstrate how Ditech's improper affidavit of default, which the master
subsequently lifted, and alleged spoliation of evidence show Ditech and its
predecessors violated the Administrative Order.
Furthermore, the delay in the foreclosure proceeding—which resulted in
substantial interest and fees—was at least in part a result of Snyder's own conduct.
Snyder, through his counsel, continued to pursue foreclosure intervention of his
own volition for four years, during which time Ditech paid all taxes and insurance
premiums on the mortgaged property. For the foregoing reasons, we affirm the
master's order granting summary judgment in favor of Ditech as to Snyder's
non-stayed counterclaim for civil compensatory contempt. 7
II. Motion to Compel Discovery
Snyder argues the master abused his discretion in denying Snyder's motion to
compel discovery because he was entitled to the records Green Tree retained in
connection with its settlement with the FTC and Ditech's responses to his second
set of interrogatories were impermissibly generic and therefore waived. We
disagree.
7
Because our decision that no genuine issue of material fact existed as to Snyder's
allegation Ditech violated the Administrative Order is dispositive of this issue, we
decline to reach the question of whether the Administrative Order created a private
cause of action. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C.
598, 613, 518 S.E.2d 591, 598 (1999) (providing that an appellate court need not
address remaining issues when resolution of a prior issue is dispositive).
We find the master did not abuse his discretion in denying Snyder's motion to
compel because evidence shows the materials Snyder sought were irrelevant and
overly broad. See Bayle v. S.C. Dep't of Transp., 344 S.C. 115, 128, 542 S.E.2d
736, 742 (Ct. App. 2001) ("The rulings of a trial judge in matters involving
discovery will not be disturbed on appeal absent a clear showing of an abuse of
discretion."); id. ("An abuse of discretion occurs when the trial judge's ruling is
based upon an error of law or, when based on factual conclusions, is without
evidentiary support."); Dunn v. Dunn, 298 S.C. 499, 502, 381 S.E.2d 734, 735
(1989) ("The burden is upon the party appealing from the order to demonstrate the
trial court abused its discretion."); see also Rule 26(b)(1), SCRCP ("Parties may
obtain discovery regarding any matter, not privileged, which is relevant to the
subject matter involved in the pending action, whether it relates to the claim or
defense of the party seeking discovery or to the claim or defense of any other
party . . . ."). First, the scope of the accounting records Snyder sought
encompassed all of Green Tree's business—not just Snyder's account—and
therefore covered an overly-broad amount of information. Further, Snyder failed
to show how information pertaining to all of Green Tree's accounts, personal
employee information, or general training materials would have been relevant to
this case. To support his defenses and counterclaims, Snyder had the burden of
demonstrating Ditech engaged in certain acts or omissions in its dealings with
Snyder. Conduct Ditech may have engaged in with non-parties was irrelevant to
its dealings with Snyder. Finally, as to Ditech's attorney's fee agreements, the
information concerning Ditech's attorney's fees would be—and in fact was—
provided to the master to determine the appropriate award. Because evidence
supports the master's denial of Snyder's motion to compel, we affirm as to this
issue.
As to Snyder's argument Ditech waived its objections to the second set of
interrogatories, we find this issue is not preserved for appellate review because it
was neither raised to nor ruled upon by the master. See Staubes v. City of Folly
Beach, 339 S.C. 406, 412, 529 S.E.2d 543, 546 (2000) ("[A]n issue cannot be
raised for the first time on appeal, but must have been raised to and ruled upon by
the [master] to be preserved for appellate review."). Snyder did not include this
argument in his motion to compel and, by his own admission, the hearing on the
motion to compel was not transcribed by a court reporter. Thus, we find this issue
is not preserved.
III. Motion to Amend
As to Snyder's argument the master abused his discretion by granting Green Tree's
February 19, 2014 motion to amend the case caption, we find this issue is moot.
See Cheap-O's Truck Stop, Inc. v. Cloyd, 350 S.C. 596, 602, 567 S.E.2d 514, 517
(Ct. App. 2002) ("An appellate court will not pass on moot and academic questions
or make an adjudication where there remains no actual controversy." (quoting
Curtis v. State, 345 S.C. 557, 567, 549 S.E.2d 591, 596 (2001))); see also Sloan v.
Friends of Hunley, Inc., 369 S.C. 20, 26, 630 S.E.2d 474, 477 (2006) ("A moot
case exists where a judgment rendered by the court will have no practical legal
effect upon an existing controversy because an intervening event renders any grant
of effectual relief impossible for the reviewing court."). On March 12, 2014, the
master issued an order amending the caption to name Green Tree as the proper
plaintiff. The order provided the action was originally brought in the name of
BAC in anticipation of an assignment of the mortgage to that entity but stated no
such assignment was recorded, and by virtue of an assignment from Countrywide
Inc. to Green Tree, Green Tree was the proper plaintiff. Because Snyder
subsequently agreed by consent order to Ditech's 2018 motion to amend the
caption to substitute Ditech for Green Tree as plaintiff, we find this issue is moot.
IV. Attorney Preference Statute Defense
Snyder argues the master erred by concluding Mary was not a "borrower" under
section 37-10-102(a)8 and, accordingly, struck his Attorney Preference Statute
defense. Snyder asserts this prejudiced Mary's estate because the defense would
have acted as a setoff to Ditech's foreclosure judgment. We find this issue is moot.
Subsequent to the master striking Snyder's Attorney Preference Statute defense,
Ditech waived its right to a deficiency judgment. In his brief of appellant, Snyder
argues his assertion of a defense for violation of the Attorney Preference Statute
would have served as a setoff to Ditech's judgment. See S.C. Code Ann.
§ 37-10-105(A) (2015) ("If a creditor violates a provision of this chapter, the
debtor has a cause of action . . . to recover actual damages and also a right in an
action . . . to recover from the person violating this chapter a penalty in an amount
determined by the court of not less than one thousand five hundred dollars and not
more than seven thousand five hundred dollars. . . . This subsection does not bar a
8
S.C. Code Ann §-37-10-102(a) ("Whenever the primary purpose of a loan that
is secured in whole or in part by a lien on real estate is for a personal, family or
household purpose . . . . The creditor must ascertain prior to closing the preference
of the borrower as to the legal counsel that is employed to represent the debtor in
all matters of the transaction relating to the closing of the transaction and . . . the
insurance agent to furnish required hazard and flood property insurance in
connection with the mortgage and comply with such preference.").
debtor from asserting a violation of this chapter in an action to collect a debt which
was brought more than three years from the date of the occurrence of the violation
as a matter of defense by recoupment or set-off in such action." (emphasis added)).
However, he failed to assert any actual damages he or Mary's estate suffered as a
result of the alleged violation to the master. 9 Snyder was required to provide a
factual basis for his claim and any actual damages suffered as a result of the
alleged violation. See Baughman, 306 S.C. at 115, 410 S.E.2d at 545 ("Once [the]
moving party carries its initial burden, [the] opposing party must, under Rule
56(e),[ SCRCP,] 'do more than simply show that there is some metaphysical doubt
as to the material facts' but 'must come forward with "specific facts showing that
there is a genuine issue for trial."'" (quoting Matsushita Elec. Indus. Co., 475 U.S.
at 587)). Accordingly, we find Snyder failed to preserve the issue of whether he or
Mary's estate was entitled to actual damages. See Staubes, 339 S.C. at 412, 529
S.E.2d at 546 ("[A]n issue cannot be raised for the first time on appeal, but must
have been raised to and ruled upon by the [master] to be preserved for appellate
review."). Thus, any penalty amount Snyder may have recovered as a setoff was
precluded by Ditech's deficiency waiver. See Setoff, Black's Law Dictionary (11th
ed. 2019) ("A debtor's right to reduce the amount of a debt by any sum the creditor
owes the debtor; the counterbalancing sum owed by the creditor."). Therefore, we
find the question of whether Mary was a borrower under section 37-10-102(a) is
moot. See Cheap-O's Truck Stop, Inc., 350 S.C. at 602, 567 S.E.2d at 517 ("An
appellate court will not pass on moot and academic questions or make an
adjudication where there remains no actual controversy." (quoting Curtis, 345 S.C.
at 567, 549 S.E.2d at 596)); Sloan, 369 S.C. at 26, 630 S.E.2d at 477 ("A moot case
exists where a judgment rendered by the court will have no practical legal effect
upon an existing controversy because an intervening event renders any grant of
effectual relief impossible for the reviewing court.").
9
As to Snyder's assertion during oral argument that Ditech's alleged violation of
the Attorney Preference Statute should preclude Mary's estate from being subject
to her half-portion of the lien, we find this issue is not properly before this court.
See Bochette v. Bochette, 300 S.C. 109, 112, 386 S.E.2d 475, 477 (Ct. App. 1989)
(noting an appellant may not use oral argument as a vehicle to argue issues not
argued in the appellant's brief).
V. Jurisdiction to Proceed with Final Foreclosure Hearing
Snyder argues the master lacked jurisdiction to proceed with the foreclosure action
after Snyder filed his initial notice of appeal. Although we find the master erred in
proceeding with the foreclosure, we affirm.
In reviewing a master's decision to retain jurisdiction over matters not affected by
an appeal, an appellate court applies an abuse of discretion standard. See Cousar v.
New London Eng'g Co., 306 S.C. 37, 40, 410 S.E.2d 243, 245 (1991).
Upon the service of the notice of appeal, the appellate
court shall have exclusive jurisdiction over the appeal;
the lower court or administrative tribunal shall have
jurisdiction to entertain petitions for writs of supersedeas
as provided by Rule 241. Nothing in these Rules shall
prohibit the lower court, commission or tribunal from
proceeding with matters not affected by the appeal.
Rule 205, SCACR.
As a general rule, the service of a notice of appeal in a
civil matter acts to automatically stay matters decided in
the order, judgment, decree or decision on appeal, and to
automatically stay the relief ordered in the appealed
order, judgment, or decree or decision. This automatic
stay continues in effect for the duration of the appeal
unless lifted by order of the lower court, the
administrative tribunal, appellate court, or judge or
justice of the appellate court. The lower court or
administrative tribunal retains jurisdiction over matters
not affected by the appeal including the authority to
enforce any matters not stayed by the appeal.
Rule 241(a), SCACR.
The reference in Rules 205 and 241(a) to the
"jurisdiction" of the lower courts does not refer to subject
matter jurisdiction. Rather, the rules govern the
circumstances under which the exclusive appellate
jurisdiction Rule 205 grants to the appellate court
deprives the lower court of the power to address a
particular issue, or "matter," during the pendency of the
appeal.
Tillman v. Oakes, 398 S.C. 245, 256 n.3, 728 S.E.2d 45, 51 n.3 (Ct. App. 2012).
We find the master erred in ordering the judgment of foreclosure and sale when
Ditech conceded at the foreclosure hearing that it would be improper for the master
to schedule a foreclosure sale while Snyder's initial appeal was pending with this
court. Although the master based his decision in part on whether Snyder's appeal
was premature, the correct inquiry should have been whether Snyder's appeal
affected the order and judgement of foreclosure and sale. See Tillman, 398 S.C. at
254-55, 728 S.E.2d at 50 ("When a party appeals an order, two questions may arise
as to the effect of the appeal: (1) what is the effect of the appeal on matters decided
in the order, particularly the immediate effectiveness of relief ordered; and (2)
what is the effect of the appeal on the power of the lower court to proceed with the
underlying action while the appeal is pending."). Snyder's initial appeal challenged
the March 12, 2014 order amending the caption, March 18, 2019 order denying
Snyder's motion to compel, and March 27, 2019 order granting partial summary
judgment. In his order granting partial summary judgment, the master found in
favor of Ditech as to Snyder's counterclaim for civil compensatory contempt to the
extent Snyder sought a complete bar to foreclosure. Moreover, the master
determined Ditech had complied with the Administrative Order, which allowed the
master to proceed and adjudicate the foreclosure dispute. See In re Mortg.
Foreclosure Actions, 396 S.C. at 211-12, 720 S.E.2d at 909. These matters
affected the master's order and judgment of foreclosure and sale because, if
reversed on appeal, they could have prevented the master from ordering
foreclosure. See Rule 205, SCACR ("Nothing in these Rules shall prohibit the
lower court, commission or tribunal from proceeding with matters not affected by
the appeal."); Rule 241, SCACR ("The lower court or administrative tribunal
retains jurisdiction over matters not affected by the appeal including the authority
to enforce any matters not stayed by the appeal."). Accordingly, we conclude the
master erred in ordering the judgment of foreclosure and sale while Snyder's
appeal was pending.
Nevertheless, because Snyder filed an amended notice of appeal to include the
master's order and judgment of foreclosure and sale, this error does not warrant
reversal of the foreclosure judgment and sale. As we stated, we affirm the master's
order granting partial summary judgment in favor of Ditech as to Snyder's
non-stayed counterclaim for civil compensatory contempt. Our decisions as to
these issues are dispositive as to this issue, and we therefore conclude reversal is
not warranted notwithstanding this error.
CONCLUSION
For the foregoing reasons, we affirm the master's denial of Snyder's motion to
compel discovery, grant of partial summary judgment in favor of Ditech as to the
non-stayed portions of Snyder's claim for civil compensatory contempt, and order
and judgment of foreclosure and sale, and we find Snyder's appeal of the master's
decision to strike his Attorney Preference Statute defense and Ditech's motion to
amend the case caption are moot.
AFFIRMED.
WILLIAMS, C.J., and KONDUROS and VINSON, JJ., concur.