Deutsche Bank v. Ashley Beshara

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

Deutsche Bank Trust Company Americas, as Trustee for
Residential Accredit Loans, Inc., Pass-Through
Certificates 2007-QH2, Respondent,

v.

Ashley Johnson Beshara as Trustee of the Revocable
Trust Agreement for 2235 Shoreline Drive originally
dated 3rd day of March 2010; Shoreline Farms
Community Association, Inc.; Wells Fargo Bank, N.A.;
Cadle Rock Joint Venture, L.P. an Ohio Limited
Partnership, Curtis Rogers and Julie Rogers, Defendants,

Of whom Curtis Rogers, Julie Rogers and Ashley
Johnson Beshara as Trustee of the Revocable Trust
Agreement for 2235 Shoreline Drive originally dated 3rd
day of March 2010 are the Appellants,

AND

Ashley Johnson Beshara as Trustee of the Revocable
Trust Agreement for 2235 Shoreline Drive originally
dated 3rd day of March 2010, Third-Party Plaintiff,

v.

Nationstar Mortgage LLC, Respondent.

Appellate Case No. 2023-001844

Appeal From Charleston County
Kristi F. Curtis, Circuit Court Judge

Unpublished Opinion No. 2026-UP-277
Heard May 6, 2026 – Filed June 3, 2026

AFFIRMED

Mary Leigh Arnold, of Mary Leigh Arnold, PA, of Mt.
Pleasant, for Appellants Curtis Rogers and Julie Rogers.

David Conor Keys, of The Law Office of David Conor
Keys, LLC, of Charleston, for Appellant Ashley Johnson
Beshara.

Jasmine Kelly Gardner, of McGuireWoods LLP, of
Charlotte, North Carolina; Thomas A. Shook, of Cobb
Hammett & Andrews, LLC, of Mt. Pleasant; Jason
Alexander Richardson, of Columbia; Elizabeth Shuffler
Moore, of Shumaker Loop & Kendrick, LLP, and
Magalie Creech, both of Charleston, all for Respondent
Deutsche Bank Trust Company Americas.

Jasmine Kelly Gardner, of McGuireWoods LLP, for
Respondent Nationstar Mortgage, LLC.

PER CURIAM: In this foreclosure action, Ashley Beshara, as Trustee for the
revocable trust holding title to 2235 Shoreline Drive (Property), and Curtis and
Julie Rogers (the Rogerses) (collectively, Appellants), appeal the circuit court's
denial of their motion for summary judgment and grant of summary judgment to
Deutsche Bank and Nationstar on Appellants' counterclaims, cross‑claims, and
third‑party claims. They also appeal the circuit court's denial of their motion to
compel certain discovery. Appellants argue the circuit court erred by (1) failing to
treat multiple Rule 40(j), SCRCP, dismissals as a dismissal on the merits; (2)
finding their counterclaims, cross‑claims, and third‑party claims were barred by the
statute of limitations; and (3) finding the counterclaims, cross‑claims, and
third‑party claims failed to raise a genuine issue of material fact for trial. We
affirm.

FACTS/PROCEDURAL HISTORY

The mortgage at issue originated in January 2007 when Curtis Rogers
executed a promissory note (Note) in the amount of $1,500,000.00 in favor of
Homecomings Financial, LLC (Homecomings). The Rogerses then signed a
mortgage (Mortgage), which along with the Note (collectively, Loan) encumbers
the Property. The Mortgage was recorded in Charleston County on January 24,
2007. On September 8, 2009, Homecomings assigned the Mortgage to Aurora
Loan Servicing, LLC (Aurora), which was recorded on September 15, 2009. That
same day, Aurora filed the first foreclosure action. That action was ultimately
removed from court's active trial roster for loss mitigation with leave to restore
pursuant to a Rule 40(j) order entered March 9, 2010. The case was reinstated to
the active trial roster on March 10, 2011.

The Rogerses filed an answer, which they later amended, and added
counterclaims against Aurora. The circuit court then substituted Nationstar as the
plaintiff on June 14, 2013. The foreclosure action was again removed from the
active trial roster with leave to restore pursuant to a second Rule 40(j) order on
June 24, 2014. The action was reinstated by order dated April 7, 2015. The case
was stricken from the trial roster for a final time pursuant to a third Rule 40(j)
order entered on May 16, 2016.

Neither the Rogerses nor Nationstar reinstated the foreclosure action after
the 2016 Rule 40(j) order. Instead, Deutsche filed the current foreclosure action
against Beshara on August 27, 2019.1 Beshara filed a motion to dismiss arguing
the entry of the three Rule 40(j) orders in the prior action operated as a dismissal
on the merits, and thus, this action was barred; she also asserted this action should
be dismissed because the Rogerses were necessary parties. The circuit court
denied the motion to dismiss and granted the Rogerses leave to intervene as
defendants. Appellants then filed and served answers and counterclaims against
Deutsche and cross‑claims and third‑party claims against Nationstar, alleging
abuse of process, malicious prosecution, negligent misrepresentation, and unfair
trade practices (SCUTPA), and requesting a declaratory judgment and an
accounting.

1
All parties agree the Property was conveyed to Beshara as Trustee and a deed was
recorded reflecting the conveyance on August 9, 2010.
The Rogerses filed a motion for summary judgment as to the foreclosure
action,2 and Deutsche and Nationstar filed a motion for summary judgment as to
Appellants' counterclaims, cross‑claims, and third‑party claims. The circuit court
held a hearing on February 10, 2023. It issued an order denying the Rogerses'
motion for summary judgment, finding the previous Rule 40(j) orders did not
preclude this action. It also granted summary judgment for Deutsche and
Nationstar as to Appellants' counterclaims, cross‑claims, and third‑party claims,
finding that there were no genuine issues of material fact and all of the claims, save
for the request for an accounting, were barred by the statute of limitations.
Appellants filed motions to reconsider, which were denied. This appeal followed.

ISSUES ON APPEAL

1. Did the circuit court err by finding that multiple Rule 40(j) motions did not
operate as a decision on the merits and therefore did not bar the institution of this
action?

2. Did the circuit court err by granting summary judgment to Deutsche and
Nationstar as to all of Appellants' counterclaims, cross‑claims, and third‑party
claims because there were no genuine issues of material fact as to any cause of
action?

3. Did the circuit court err by finding all of Appellants' counterclaims, cross‑claims,
and third‑party claims were barred by the statute of limitations?

4. Did the circuit court err by finding Beshara lacked standing to raise causes of
action regarding the terms of the Loan?

5. Did the circuit court err by granting summary judgment to Deutsche and
Nationstar when discovery had not been completed?

STANDARD OF REVIEW
"In reviewing a grant of summary judgment, our appellate court applies the
same standard as the [circuit] court under Rule 56(c), SCRCP." Woodson v. DLI
Props., LLC, 406 S.C. 517, 528, 753 S.E.2d 428, 434 (2014). "A [circuit] court

2
The Rogerses also filed a motion to compel, which the circuit court granted in
part in the same order currently on appeal.
may properly grant a motion for summary judgment when 'the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.'" Buonaiuto v.
Town of Hilton Head Island, 440 S.C. 144, 150, 889 S.E.2d 625, 628 (Ct. App.
2023) (quoting Rule 56(c)).

"When a party makes a motion for summary judgment, 'an adverse party
may not rest upon the mere allegations or denials of his pleadings, but his
response . . . must set forth specific facts showing that there is a genuine issue for
trial.'" Coker v. Cummings, 381 S.C. 45, 54, 671 S.E.2d 383, 388 (Ct. App. 2008)
(quoting S.C. Elec. & Gas Co. v. Combustion Eng'g, Inc., 283 S.C. 182, 188‑89,
322 S.E.2d 453, 457 (Ct. App. 1984)). However, "[a] conclusory statement as to
the ultimate issue in a case is not sufficient to create a genuine issue of fact for
purposes of resisting summary judgment." Shupe v. Settle, 315 S.C. 510, 516‑17,
445 S.E.2d 651, 655 (Ct. App. 1994). "In determining whether any triable issue of
fact exists, the evidence and all inferences which can reasonably be drawn
therefrom must be viewed in the light most favorable to the nonmoving party."
Quail Hill, L.L.C. v. County of Richland, 387 S.C. 223, 235, 692 S.E.2d 499, 505
(2010) (quoting Pye v. Estate of Fox, 369 S.C. 555, 563, 633 S.E.2d 505, 509
(2006)).

EFFECT OF RULE 40(j) DISMISSALS

Appellants argue Rule 40(j) only allows for a one‑time dismissal without
prejudice and any further dismissals are "akin to a second dismissal under Rule 41,
SCRCP, and [a] determination on the merits," so the circuit court erred by allowing
Deutsche to continue to prosecute this current action. We disagree.
"In interpreting the meaning of the South Carolina Rules of Civil Procedure,
this court applies the same rules of construction used to interpret statutes." Pers.
Care, Inc. v. Theos, 426 S.C. 78, 85, 825 S.E.2d 281, 285 (Ct. App. 2019); see also
Books-A-Million, Inc. v. S.C. Dep't of Revenue, 437 S.C. 640, 642, 880 S.E.2d 476,
477 (2022) ("We review questions of statutory interpretation de novo."). "If a
rule's language is plain, unambiguous, and conveys a clear meaning, interpretation
is unnecessary and the stated meaning should be enforced." Pers. Care, Inc., 426
S.C at 85, 825 S.E.2d at 285. Rule 40(j) states:

A party may strike its complaint, counterclaim, cross‑claim, or
third[‑]party claim from any docket one time as a matter of right,
provided that all parties adverse to that claim . . . agree in writing that
it may be stricken, and all further agree that if the claim is restored upon
motion made within 1 year or the date stricken, the statute of limitations
shall be tolled as to all consenting parties during the time the case is
stricken, and any unexpired portion of the statute of limitations on the
date the case was stricken shall remain and begin to run on the date that
the claim is restored . . . . Upon being restored, the case shall be placed
on the General Docket and proceed from that date as provided in this
rule.

Rule 40(j) and Rule 41, SCRCP, are separate rules governing different
situations. Rule 40 is titled "General Docket, Trial Rosters, and Call of Cases for
Trial" and governs the maintenance of the court's docket and trial roster. On the
other hand, Rule 41 is titled "Dismissal of Actions; Non‑Suit" and discusses the
effect of both voluntary and involuntary dismissals. Notably, the cover sheets used
for the orders in this case allow the circuit court to check a box to denote the type
of order being issued. Among the choices, one says, "Action Dismissed" and
references Rule 41(a); however, all the orders in this case are instead marked,
"Action Stricken," which references Rule 40(j).

Rule 40(j) does not contain any language indicating that a party is allowed
only one dismissal under the rule or that a second dismissal operates as an
adjudication on the merits. Rather, the rule states that the party may strike its
complaint "one time as a matter of right." See Rule 40(j) (emphasis added).
However, it is silent as to the effect of multiple dismissals or requests to dismiss
under this rule. Id. On the other hand, Rule 41 contains a provision expressly
stating that "a notice of dismissal operates as an adjudication upon the merits when
filed by a plaintiff who has once dismissed in any court of the United States or of
any state an action based on or including the same claim." See Rule 41(a)(1)
(emphases added). Case law discussing the federal version of Rule 41, as well as
cases from states with a similar version of our rule, makes a clear distinction
between cases dismissed by notice and those dismissed by motion, stipulation, or
order. See, e.g., Manning v. S.C. Dep't. of Highway & Pub. Transp., 914 F.2d 44,
47 n.3 (4th Cir. 1990) (explaining "[t]he two dismissal rule applies when the
second dismissal is by notice, but not when the defendant is dismissed by motion
or stipulation"); ASX Inv. Corp. v. Newton, 183 F.3d 1265, 1268 (11th Cir. 1999)
(noting that the "primary purpose of the 'two dismissal rule' is to prevent an
unreasonable abuse of the plaintiff's unilateral right to dismiss" but that "[a]
dismissal obtained by motion and order of the court under Rule 41(a)(2) or similar
state rule is not unilateral and does not pose the same danger of abuse or
harassment as does a Rule 41(a)(1) dismissal by plaintiff's notice" (emphases
added) (citations omitted); Est. of Livesay ex rel. Morely v. Livesay, 723 S.E.2d
772, 776 (N.C. Ct. App. 2012) (stating that the first element of the two dismissal
rule is that "the plaintiff must have filed the notices to dismiss under Rule
41(a)(1)(i), since . . . the two dismissal rule does not apply where the plaintiff's
dismissal is by stipulation or by order"); Crawford v. Kingston, 728 S.E.2d 904,
906 (Ga. Ct. App. 2012) (finding that even though the plaintiff requested dismissal
of a previous action, "the dismissal itself was by an order of the [] court" and
therefore, "that dismissal was involuntary" for purposes of the two dismissal rule).
The distinction is important here because even if Appellants were correct that Rule
41 somehow applied, the prior foreclosure action was always stricken via a signed
order—i.e., by the court—not a notice. Accordingly, we hold the circuit court did
err in finding that multiple Rule 40(j) dismissals in the prior action did not act as
an adjudication on the merits, and Deutsche and Nationstar should not be barred
from maintaining this action on that basis. See Pers. Care, Inc., 426 S.C. at 85,
825 S.E.2d at 285 ("If a rule's language is plain, unambiguous, and conveys a clear
meaning, interpretation is unnecessary and the stated meaning should be
enforced."); Buonaiuto, 440 S.C. at 150, 889 S.E.2d at 628 ("A [circuit] court may
properly grant a motion for summary judgment when 'the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.'" (quoting Rule 56(c))).3

Finally, we note that the Rogerses consented to at least two of the three Rule
40(j) dismissals in this case. Although they contend that they did so because they
believed the dismissals would end the case with prejudice, they never presented
this argument to the circuit court and obtained a ruling on it or requested language
to that effect in the orders. The case was stricken by the second Rule 40(j) order
on June 24, 2014, which specifically stated the action was "stricken from the active
roster with leave to restore." The order reinstating that action for the third time
was filed April 7, 2015. The Rogerses asserted at oral argument that they did not

3
Beshara also asserts that collateral estoppel bars the second action. Our holding
that subsequent Rule 40(j) motions do not constitute an adjudication on the merits
would also prevent the application of collateral estoppel. See Crosby v. Prysmian
Commc'ns Cables & Sys. USA, LLC, 397 S.C. 101, 109, 723 S.E.2d 813, 817 (Ct.
App. 2012) (explaining that "[a] party claiming preclusive effect under collateral
estoppel must demonstrate that the particular issue was '(1) actually litigated in the
prior action; [and] (2) directly determined in the prior action'" (quoting Carolina
Renewal, Inc. v. S.C. Dep't of Transp., 385 S.C. 550, 554, 684 S.E.2d 779, 782 (Ct.
App. 2009))).
consent to that third restoration order; however, the record indicates the order was
timely served upon them in April 2015, and there is no evidence before us that the
Rogerses objected to that order (or any of the others) or raised the argument
regarding multiple dismissals to the circuit court at that time. The final order
striking the case was entered on May 16, 2016, and the emails attached to the Form
4 order show that the Rogerses specifically requested the order state the dismissal
was pursuant to Rule 40(j).4 See, e.g., Brown v. Singletary, 226 S.C. 482, 484, 85
S.E.2d 738, 738 (1955) (stating that a party "cannot take [its] chances of a
successful issue, reserving vices in the trial, of which [it] has notice, for use in case
of disappointment in the result").

GENUINE ISSUES OF MATERIAL FACT

Appellants contend the circuit court erred because they established all
necessary elements as to all their claims, or, in the alternative, that genuine issues
of fact precluded the grant of summary judgment for Deutsche and Nationstar. We
disagree.

A. Malicious Prosecution

Appellants assert that they set forth all of the required elements of malicious
prosecution because, among other reasons, the prior foreclosure action ended
favorably to them because the case was dismissed and dismissals pursuant to Rule
40(j) are an adjudication on the merits.

"[T]o maintain an action for malicious prosecution, a plaintiff must
establish: (1) the institution or continuation of original judicial proceedings; (2) by
or at the instance of the defendant; (3) termination of such proceedings in [the]
plaintiff's favor; (4) malice in instituting such proceedings; (5) lack of probable
cause; and (6) resulting injury or damage." Pallares v. Seinar, 407 S.C. 359, 366,
756 S.E.2d 128, 131 (2014) (quoting Law v. S.C. Dep't of Corr., 368 S.C. 424, 435,
629 S.E.2d 642, 648 (2006)). "Whether probable cause exists is ordinarily a jury
question, but it may be decided as a matter of law when the evidence yields only
one conclusion." Id. at 367, 756 S.E.2d at 132.

We agree with the circuit court that Appellants' claim for malicious
prosecution fails as a matter of law because they cannot show the "termination
of . . . proceedings in [their] favor." Id. at 366, 756 S.E.2d at 131. We

4
We acknowledge that the final order was simply a Form 4 with no formal order.
acknowledge our case law states that "there is a basis . . . for considering a case
stricken pursuant to [Rule 40(j)] as the equivalent of dismissed." Goodwin v.
Landquest Dev., LLC, 414 S.C. 623, 630‑31, 779 S.E.2d 826, 830 (Ct. App. 2015).
We interpret Goodwin to say that a case stricken pursuant to Rule 40(j) is
functionally equivalent to a dismissal because it removes the case from the active
trial roster. See Rule 40, SCRCP, Note on 1994 Amendments ("Rule 40 addresses
problems in the scheduling of cases and substantially revises the way jury cases are
called for trial."). Additionally, even if Goodwin is interpreted to mean that a Rule
40(j) is a dismissal, we find that simply dismissing a case is not a resolution in
Appellants' favor, particularly when as we have explained above, the dismissal was
not an adjudication on the merits. See Gecy v. Somerset Point at Lady's Island
Homeowners Ass'n, Inc., 426 S.C. 540, 553, 828 S.E.2d 73, 80 (Ct. App. 2019)
("[W]e interpret the element of favorable termination of proceedings to mean a
termination reflective of the merits."); id. ("This interpretation means a termination
consistent with a finding for the defendant on substantive grounds and not based
solely on technical or procedural considerations." (emphasis added)). Therefore,
we affirm the circuit court's grant of summary judgment in favor of Deutsche and
Nationstar as to this claim.

B. Abuse of Process

Appellants argue Deutsche and Nationstar improperly used the legal process
for "an illegitimate collateral objective" and point to the Rule 40(j) dismissals and
the filing of this current action to support their contention that Deutsche and
Nationstar operated outside the bounds of standard legal procedures.

"[T]he tort of abuse of process, as distinguished from that of malicious
prosecution, involves the malicious misuse or perversion of the process, after its
issuance, for an end not lawfully warranted by it." Johnson v. Painter, 279 S.C.
390, 391, 307 S.E.2d 860, 860 (1983). "The essential elements of abuse of process
are: (1) an ulterior purpose; and (2) a wil[l]ful act in the use of the process not
proper in the regular conduct of the proceeding." Id. "Some definite act or threat
not authorized by the process or aimed at an object[ive] not legitimate in the use of
the process is required." Hainer v. Am. Med. Int'l, Inc., 328 S.C. 128, 136, 492
S.E.2d 103, 107 (1997). "The improper purpose usually takes the form of coercion
to obtain a collateral advantage, not properly involved in the proceeding itself." Id.

We find Appellants failed to show any purpose, other than foreclosing on
Property, for bringing either the original action or this current action, nor did
Appellants present any evidence of threats or coercion. See id. at 138‑39, 492
S.E.2d at 108 (holding a nurse failed to prove abuse of process against the hospital
she formerly worked for when the only "act" she pointed to was that the hospital
"delayed filing its complaint . . . for several months"). Further, an abuse of process
claim must rest on actions occurring "after its issuance." Painter, 279 S.C. at 391,
307 S.E.2d at 860 (emphasis added). Thus, to the extent Appellants rely on the
filing of this current action as support for this claim, it must fail as a matter of law.
Id. ("[T]he tort of abuse of process . . . involves the malicious misuse or perversion
of the process, after its issuance . . . .").5 Finally, for the reasons discussed above,
the Rule 40(j) dismissals do not constitute acts "not authorized by the process or
aimed at an object[ive] not legitimate in the use of the process" to support this
claim. See Hainer, 328 S.C. at 136, 492 S.E.2d at 107. We therefore affirm the
grant of summary judgment in favor of Deutsche and Nationstar as to the abuse of
process claims.

C. Negligent Misrepresentation

Appellants assert Deutsche and Nationstar made misrepresentations because
the Note "is a pick [and] pay loan with a negative amortization feature" and the
monthly statements "contain inaccurate and misinformation." They also contend
that "Deutsche and/or Nationstar's statements regarding their right to file
foreclosure against Appellant[s] constitute negligent misrepresentation."

In a claim for negligent misrepresentation where the damage alleged is
monetary loss, the claimant must prove the following elements:

(1) the defendant made a false representation to the
plaintiff; (2) the defendant had a pecuniary interest in
making the statement; (3) the defendant owed a duty of
care to see that he communicated truthful information to
the plaintiff; (4) the defendant breached that duty by
failing to exercise due care; (5) the plaintiff justifiably
relied on the representation; and (6) the plaintiff suffered
a pecuniary loss as the proximate result of his reliance
upon the representation.

5
Additionally, as noted by the circuit court, Beshara was not a party to the original
action; thus, even if there was evidence of misconduct during that action, it would
not supply Beshara with a basis to maintain this claim.
West v. Gladney, 341 S.C. 127, 133‑34, 533 S.E.2d 334, 337 (Ct. App. 2000)
(quoting AMA Mgmt. Corp. v. Strasburger, 309 S.C. 213, 222, 420 S.E.2d 868,
874 (Ct. App. 1992)).

Appellants' negligent misrepresentation claims fail as a matter of law
because there is no evidence in the record before us setting forth the specific
statements that were allegedly false representations, who made them, or when, nor
that Appellants relied on any of the alleged misrepresentations. In fact, Appellants
have clearly not relied on any of the allegedly false statements, as they have
contested the propriety of the foreclosure since 2009—almost seventeen years. See
West, 341 S.C. at 133‑34, 533 S.E.2d at 337 (stating that to prevail on a claim for
negligent misrepresentation, the plaintiff must show justifiable reliance on the
representation). Because Appellants have not relied on any alleged
misrepresentations, they have not been damaged. Furthermore, Beshara did not
provide any evidence of the losses she purportedly suffered regarding a diminution
in the Property's value because of this lawsuit or the costs associated with family
"strife and tension." Similarly, when Curtis Rogers was asked whether he had
expended or lost any money because of his reliance on the alleged
misrepresentations, he stated he did not recall. The only money he could
remember paying was "a check written for one of the workouts"—an agreement he
voluntarily entered. See id. (explaining that one element of negligent
misrepresentation is that a "plaintiff suffered a pecuniary loss as the proximate
result of his reliance on the representation" (emphasis added)).6 Accordingly, we
affirm the circuit court's grant of summary judgment to Deutsche and Nationstar as
to these claims.

D. SCUTPA

The Rogerses assert Deutsche and Nationstar's attempts to collect a debt
"through deception or unfair means also cause[d] 'ascertainable loss.'" Beshara
argues that Deutsche and Nationstar's "intentional delays and improper coercive,
tactical acts . . . to avoid the issues" raised by the Rogerses in the first action
caused them to file this action naming her as the plaintiff instead. Both contend

6
To the extent any of Appellants' claims are based on representations made during
the first action, those claims are barred by the statute of limitations. S.C. Code
Ann. § 15‑3‑530(1)‑(2) (2005) (explaining the statute of limitations for actions
"upon a contract, obligation, or liability" other than those secured by a mortgage
and actions "upon a liability created by statute" is three years).
they have been damaged by Deutsche and Nationstar's unfair trade practices
because they have incurred legal expenses in defense of the foreclosure actions.
SCUTPA prohibits "unfair or deceptive acts or practices in the conduct of any
trade of commerce." S.C. Code Ann. § 39‑5‑20(a) (2023). SCUTPA "creates a
private right of action in favor of '[a]ny person who suffers any ascertainable loss of
money or property, real or personal, as a result of the use . . . by another person of
an unfair or deceptive method, act[,] or practice.'" Wright v. Craft, 372 S.C. 1, 23,
640 S.E.2d 486, 498 (Ct. App. 2006) (quoting § 39‑5‑140(a)). However, "an unfair
trade practices claim may not be brought in a representative capacity." Wogan v.
Kunze, 366 S.C. 583, 609, 623 S.E.2d 107, 121 (Ct. App. 2005), aff'd as modified,
379 S.C. 581, 666 S.E.2d 901 (2008).
In order to recover pursuant to SCUTPA, "the plaintiff must show: (1) the
defendant engaged in an unfair or deceptive act in the conduct of trade or
commerce; (2) the unfair or deceptive act affected public interest; and (3) the
plaintiff suffered monetary or property loss as a result of the defendant's unfair or
deceptive act(s)." Id. "Actual damages under the SCUTPA include special or
consequential damages that are a natural and proximate result of deceptive
conduct." Mull v. Ridgeland Realty, LLC, 387 S.C. 479, 488, 693 S.E.2d 27, 32
(Ct. App. 2010). SCUTPA also states that, "upon the finding by the court of a
violation . . . , the court shall award . . . reasonable attorney's fees and costs.
§ 39‑5‑140(a). Thus, "actual damages are distinct from attorney's fees." Mull, 387
S.C. at 488‑89, 693 S.E.2d at 32.

Beshara's SCUTPA claim fails because it was brought in a representative
capacity. See Wogan, 366 S.C. at 609, 623 S.E.2d at 121 ("[A]n unfair trade
practices claim may not be brought in a representative capacity."). Beshara is not
named in this action individually, but rather as Trustee for the Property. Further, it
appears that Beshara's only claim of damages from any alleged unfair acts is that
she has incurred legal fees to defend this action; however, legal fees alone are
insufficient to support the damages element of a SCUTPA claim. See Mull, 387
S.C. at 488‑89, 693 S.E.2d at 32 (explaining that when section 39‑5‑140(a) is read
as a whole, it is clear that "actual damages are distinct from attorney's fees").
Regardless, to the extent that Beshara has incurred legal fees in defending this
action, she has done so in her representative capacity, not as an individual.
Similarly, the Rogerses allege damages from defending the foreclosure
actions.7 They also broadly allege a variety of unfair or deceptive actions taken by
Deutsche, Nationstar, and their predecessors in interest in their complaint.
However, the only assertion of an allegedly unfair act we could locate in the record
was Curtis Rogers's contention in his deposition that the terms of both the original
note and "loan modification offer" were unreasonable because they resulted in
monthly payments that he could not afford.8 When asked whether he believed that
a loan servicer engages in unfair or deceptive trade practices "if they don't offer []
a loan modification that is . . . tailored" to a borrower's specific needs, Curtis
responded that he did not know how to answer that question. As to the impact of
the allegedly unfair acts on the public interest, Curtis stated "the pick‑and‑pay loan
[wa]s probably the most obvious situation that people have fallen prey to."

Neither the Rogerses nor Beshara offered any analysis of how these
contentions support the elements of a SCUTPA claim. We find the Rogerses claim
fails because a loan servicer's decision to offer terms deemed acceptable by a
specific borrower is not an act or omission that affects the public interest. Further,
even assuming, arguendo, that the act of offering this type of loan was an unfair or
deceptive trade practice, the Rogerses did not point to any evidence suggesting
these loans were offered to any other customers or that other consumers were
harmed by them. Also, the monetary losses they allegedly suffered in defending
the foreclosure actions are not compensable in the absence of actual damages. Id.
Therefore, we affirm the circuit court's grant of summary judgment. See Coker,
381 S.C. at 54, 671 S.E.2d at 388 (explaining that "mere allegations or denials"
contained in a party's pleadings is insufficient to create a genuine issue of material
fact for trial); Shupe, 315 S.C. at 516‑17, 445 S.E.2d at 655 ("A conclusory
statement as to the ultimate issue in a case is not sufficient to create a genuine issue
of fact for purposes of resisting summary judgment."); Buonaiuto, 440 S.C. at 150,
889 S.E.2d at 628 ("A [circuit] court may properly grant a motion for summary
judgment when 'the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.'" (quoting Rule 56(c))).

7
Again, we note that any claim for legal fees arising from the prior foreclosure
action would be barred by the statute of limitations. See § 15‑3‑530(1)‑(2)
(three‑year statute of limitations).
8
Deutsche and Nationstar did not originate the Note and Mortgage, and the
Rogerses do not contend that they entered into the Loan involuntarily or under
duress.
E. Declaratory Judgment

Appellants argue their claims for declaratory judgment are not duplicative of
the underlying foreclosure action. Additionally, Appellants assert the circuit court
erred by finding Deutsche had standing to initiate the current action because that
issue was not before the court.9

"The decision to grant a declaratory judgment is a matter which rests in the
sound discretion of the [circuit] court and will not be disturbed absent a clear
showing of abuse." Garris v. Governing Bd. of S.C. Reinsurance Facility, 319
S.C. 388, 390, 461 S.E.2d 819, 820‑21 (1995). "Declaratory relief will ordinarily
be refused where another remedy will be more effective or appropriate under the
circumstances." Id. at 390, 461 S.E.2d at 821. This court "should not serve as a
substitute for 'a tribunal of original jurisdiction in issues that are ripe for litigation
by the usual processes.'" Smith v. S.C. Ret. Sys., 336 S.C. 505, 527‑28, 520 S.E.2d
339, 351 (Ct. App. 1999) (quoting Williams Furniture Corp. v. S. Coatings &
Chem. Co., 216 S.C. 1, 8, 56 S.E.2d 576, 579 (1949)).

We agree with the circuit court that Appellants have not raised any issues
necessitating a declaratory judgment which they cannot raise in defense of the
foreclosure action. Essentially, Appellants are asking the circuit court to rule on
the validity of their defenses prior to the adjudication of the foreclosure issue.
Appellants' assertions regarding the unconscionability of the Note's terms, the
chain of ownership of the Note and Mortgage, the process of a potential workout
and the offered options, as well as Deutsche and Nationstar's conduct can be or
have been litigated in this current action. See Smith, 336 S.C. at 527‑28, 520
S.E.2d at 351 (instructing that this court "should not serve as a substitute for 'a
tribunal of original jurisdiction in issues that are ripe for litigation by the usual
processes'"). We affirm the circuit court's grant of summary judgment to Deutsche
and Nationstar as to these claims.

F. Accounting

9
We do not interpret anything in the circuit court’s lengthy and detailed order as
addressing any contested issues on the merits except as necessary to adjudicate the
issues raised by Deutsche's motion for summary judgment on Appellants'
counterclaims.
Beshara argues the circuit court erred in finding a claim for an accounting
"is not an affirmative cause of action." She asserts Appellants have pled that the
loan terms and accounting are "extremely complicated" given the "fluctuating
terms" and "varied fees" charged by Deutsche, Nationstar, and their predecessors
in interest.

"[T]he equitable remedy of an 'accounting' . . . refers to 'an adjustment of the
accounts of the parties and a rendering of a judgment for the balance ascertained to
be due.'" Hist. Charleston Holdings, LLC, 381 S.C. at 427, 673 S.E.2d at 453
(quoting 1 Am. Jur.2d Accounts & Accounting § 52 (2005)). "[A]n accounting is
designed to prevent unjust enrichment by disclosing and requiring the
relinquishment of profits received as the result of a breach of a confidential or
fiduciary duty." Rogers v. Salisbury Brick Corp., 299 S.C. 141, 144, 382 S.E.2d
915, 917 (1989). "[E]quitable relief is generally available when there is no
adequate remedy at law . . . ." Key Corp. Capital, Inc., v. County of Beaufort, 373
S.C. 55, 61, 644 S.E.2d 675, 678 (2007). Situations in which legal relief is
inadequate and therefore an accounting may be a proper remedy in "actions
involving long and complicated accounts where it would not be practicable for a
jury to comprehend the issues and correctly make adjustment" and "when there is a
need for discovery." Rogers, 299 S.C. at 144, 382 S.E.2d at 917.

Although Beshara asserts the account at issue is "extremely complicated,"
there is only one account at issue, and Appellants have stated throughout this case
that Deutsche, Nationstar, and their predecessors have continuously sent monthly
account statements. Further, the Loan originated in 2007 and it appears no
payments have been made on the Loan, other than an unsuccessful workout
agreement, since 2009. Thus, we find Beshara has not established that legal
remedies are inadequate due to either the complicated nature of the account or the
need for additional discovery. See Rogers, 299 S.C. at 144, 382 S.E.2d at 917
(explaining that an accounting may be a proper remedy include "actions involving
long and complicated accounts where it would not be practicable for a jury to
comprehend the issues and correctly make adjustment" and "when there is a need
for discovery"). Accordingly, we affirm the circuit court as to this claim.

DISCOVERY

The Rogerses argue that they are entitled to the names of the witnesses who
will testify so they can investigate and depose them and that they are prejudiced by
not being provided this information.
"An affirmative duty does exist to answer interrogatories and respond to
requests to produce." CFRE, LLC v. Greenville Cnty. Assessor, 395 S.C. 67, 83,
716 S.E.2d 877, 885 (2011); see also Rule 33(a), SCRCP ("Each interrogatory
shall be answered separately and fully in writing under oath, unless it is objected
to, in which event the reasons for objections shall be stated in lieu of an answer."
(emphasis added)). Rule 33 further states that "interrogatories shall be deemed to
continue from the time of service, until the time of trial . . . so that information
sought, which comes to the knowledge of a party . . . after original answers to
interrogatories have been submitted, shall be promptly transmitted to the other
party." Rule 33(b), SCRCP. "Therefore, there is a continuing duty on the part of
the party from whom information is sought to answer a standard interrogatory,
such as the one requesting the party list any [] witnesses whom the party proposes
to use as a witness at the trial of the case." Bensch v. Davidson, 354 S.C. 173, 182,
580 S.E.2d 128, 132 (2003).

We do not interpret the circuit court's order to mean that Deutsche does not
have a duty to provide the name(s) of any fact witnesses, as the duty to turn over
discovery is ongoing until trial, nor do we interpret the order to preclude
Appellants from filing additional motions on this issue once a trial is scheduled.
CFRE, LLC, 395 S.C. at 83, 716 S.E.2d at 885 ("An affirmative duty does exist to
answer interrogatories and respond to requests to produce."); Bensch, 354 S.C. at
182, 580 S.E.2d at 132 ("When it appears a violation of Rule 33 has occurred, it
lies within the discretion of the [circuit] court to decide what sanction, if any,
should be imposed.").

AFFIRMED.10

THOMAS, HEWITT, and TURNER, JJ., concur.

10
Because our rulings on the above issues are dispositive, it is unnecessary for us
to reach Appellants' remaining issues. See Futch v. McAllister Towing of
Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (stating that an
appellate court need not address remaining issues when its resolution of a prior
issue is dispositive).