JP Morgan Chase Bank v. Bradley

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

JP Morgan Chase Bank, National Association,
Respondent,

v.

Vanessa Y. Bradley, Appellant.

Appellate Case No. 2011-193386

Appeal From Pickens County
R. Murray Hughes, Special Referee.

Unpublished Opinion No. 2013-UP-090
Heard February 5, 2013 – Filed February 27, 2013

AFFIRMED

Susan P. Ingles, of South Carolina Legal Services, of
Greenville, for Appellant.

Samuel C. Waters, of Rogers Townsend & Thomas, PC,
of Columbia; Mary M. Caskey and James Y. Becker,
both of Haynsworth Sinkler Boyd, PA, of Columbia; and
Sarah P. Spruill, of Haynsworth Sinkler Boyd, PA, of
Greenville, for Respondent.
PER CURIAM: In this foreclosure action, Vanessa Y. Bradley seeks review of
the Special Referee's order denying her motion to set aside the foreclosure sale of
her property. We affirm.

1. As to whether JP Morgan Chase Bank, National Association (Bank) violated its
obligations under the Home Affordable Modification Program (HAMP) and
Administrative Order 2009-05-22-01, we find the Special Referee did not abuse his
discretion in declining to set aside the foreclosure sale on these grounds. See Wells
Fargo Bank, NA v. Turner, 378 S.C. 147, 150, 662 S.E.2d 424, 425 (Ct. App.
2008) (stating the determination of whether a judicial sale should be set aside is a
matter left to the sound discretion of the trial court). Although Bank violated
HAMP by holding the foreclosure sale while Bradley's reapplication for loan
modification was pending, we find Bank's overall actions captured the spirit of
HAMP given that it postponed two foreclosure sales and worked with Bradley for
seventeen months in attempts to modify her loan. See id. ("A judicial sale will be
set aside when either: (1) the sale price 'is so gross as to shock the conscience[;]' or
(2) the sale 'is accompanied by other circumstances warranting the interference of
the court.'" (citation omitted)). Additionally, because Bradley failed to file a
counter affidavit and testified that Bank had a sufficient basis to deny her
permanent modification under HAMP, i.e., her failure to timely make the last Trial
Period Plan payment, we find that Bank's failure to fully comply with the
procedures set forth in the Administrative Order did not warrant setting aside the
foreclosure sale. See In re Mortgage Foreclosures and the Home Affordable
Modification Program (HMP), 2009-05-22-01 (May 22, 2009) (stating "if a
counter affidavit is not timely served, the determination of whether there are
[HAMP] issues which need to be resolved before foreclosure is ordered shall be
based on the affidavit alone, unless the judge allows the late service and filing of
the counter affidavit or allows the issue to become contested at some later stage in
the proceeding").

2. As to whether the Special Referee erred in finding the forbearance agreement
between the parties did not preclude Bank from continuing to file pleadings and
scheduling the foreclosure sale, we affirm. Here, the specific terms of the
forbearance agreement are unclear because the agreement was never committed to
writing. However, based on the facts in the record, we find the parties did not
share a meeting of the minds regarding what actions Bank was to forbear. See
Player v. Chandler, 299 S.C. 101, 105, 382 S.E.2d 891, 893 (1989) ("South
Carolina common law requires that, in order to have a valid and enforceable
contract, there must be a meeting of the minds between the parties with regard to
all essential and material terms of the agreement.").

3. As to whether the Special Referee violated Bradley's right to procedural due
process, we affirm. Bradley failed to raise her argument regarding the service of
the supplemental orders until the hearing on the Rule 59(e) motion; therefore, this
argument is not preserved for appellate review. See Godfrey v. Heller, 311 S.C.
516, 520, 429 S.E.2d 859, 862 (Ct. App. 1993) (holding an issue was not preserved
when the party failed to raise the issue in a Rule 59(e) motion to alter or amend the
judgment). Moreover, Bradley failed to show she has a protected interest in a loan
modification, which is a prerequisite to prevail on a due process claim. See
Seabrook v. Knox, 369 S.C. 191, 197, 631 S.E.2d 907, 910 (2006) ('"Procedural
due process imposes constraints on governmental decisions which deprive
individuals of 'liberty' or 'property' interests within the meaning of the Due Process
Clause of the Fifth or Fourteenth Amendment."' (quoting Mathews v. Eldridge, 424
U.S. 319, 332 (1976))).

4. As to whether the Special Referee erred in declining to grant Bradley's request
for discovery and an evidentiary hearing, we affirm. Here, Bradley specifically
sought post-foreclosure sale discovery in order to review Bank's decision to deny
her a loan modification. However, the South Carolina Rules of Civil Procedure do
not allow for discovery after the determination of the merits of an action. See Rule
26, SCRCP (stating parties may engage in discovery regarding "relevant" matters
in a "pending" action). Furthermore, Administrative Order 2009-05-22-01 does
not provide for any discovery concerning the HAMP process, nor does it entitle
Bradley to a hearing.

5. As to whether the Special Referee erred in denying Bradley's motion to set aside
the foreclosure judgment under Rule 60(b)(3), SCRCP, we find the Special Referee
did not abuse his discretion in denying her motion. Bradley contends that Bank's
August 19, 2010, letter indicating that no foreclosure sale would occur for 30 days
from the date of the letter evidences fraud, misrepresentation, or other misconduct.
See Rule 60(b)(3), SCRCP (providing that a party may be relieved of a final order
or judgment based upon "fraud, misrepresentation, or other misconduct of an
adverse party"). However, Bradley testified that after receiving the letter she
contacted Bank numerous times and was repeatedly informed the foreclosure sale
had not been cancelled. She further testified that in spite of the representations that
the foreclosure sale had not been cancelled, she took no action to consult an
attorney, appear in the foreclosure action, or to attend the foreclosure sale.
Accordingly, we do not believe the Special Referee erred in declining to set aside
the foreclosure sale under Rule 60(b)(3). See Auto-Owners Ins. Co. v. Rhodes, 385
S.C. 83, 93, 682 S.E.2d 857, 863 (Ct. App. 2009) (stating that the decision to grant
or deny a motion to set aside a judgment is within the sound discretion of the trial
court); see also Raby Constr., L.L.P. v. Orr, 358 S.C. 10, 21, 594 S.E.2d 178, 484
(2004) (stating a party may not prevail on a Rule 60(b)(3) motion on the basis of
fraud when he or she has access to disputed information or has knowledge of
inaccuracies in an opponent's representations at the time of the alleged
misconduct).

AFFIRMED.

FEW, C.J., and GEATHERS and LOCKEMY, JJ., concur.