TD Bank v. Lalla

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Unpublished Opinion No. 2016-UP-350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Withdrawn, Substituted and Refiled August 24, 2016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.