Wells Fargo Bank v. Michelle Hodges

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

Wells Fargo Bank, N.A., Respondent,

v.

Michelle Hodges, Individually and as the Personal
Representative of the Estate of Ladson Witherspoon;
Stanley Witherspoon; SC Housing Corp.; and Twin
Creeks Homeowners Association, Inc., Defendants,

Of Whom Michelle Hodges, Individually, is the
Appellant.

Appellate Case No. 2019-001565

Appeal From Greenville County
Robin B. Stilwell, Circuit Court Judge
Perry H. Gravely, Circuit Court Judge

Unpublished Opinion No. 2022-UP-326
Submitted July 27, 2022 – Filed August 17, 2022

AFFIRMED

Michelle Hodges, of Simpsonville, pro se.

Matthew Todd Carroll and Bryant Sparks Caldwell, both
of Womble Bond Dickinson (US) LLP, of Columbia; and
Shelton Sterling Laney, III, of Womble Bond Dickinson
(US) LLP, of Greenville, all for Respondent.

PER CURIAM: Michelle Hodges appeals circuit court orders denying her motion
to alter or amend her answer and counterclaims for a seventh time, granting Wells
Fargo Bank, N.A. (Wells Fargo), summary judgment on Hodges's counterclaims,
and referring the underlying foreclosure matter to the master-in-equity.

On appeal, Hodges argues the circuit court (1) abused its discretion in denying her
motion to amend her answer and counterclaims for a seventh time; (2) erred in
granting summary judgment to Wells Fargo on her counterclaims; (3) violated her
due process rights; (4) erred in allowing pre-signed interrogatory verifications;
(5) "err[ed] in deciding the facts and not framing the issues before referring the case
to the master"; (6) erred in granting Wells Fargo's motion to strike her jury trial
demand; (7) erred in referring the case to the master; and (8) erred in finding the loan
was in default as of the May 2017 payment date.

Regarding Hodges's first argument, we find this issue without merit because Hodges
did not establish what new facts or claims, if any, her seventh amended complaint
would have added. See Rule 15(a), SCRCP (stating that a party may amend a
pleading once as a matter of course, after which "a party may amend his pleading
only by leave of court or by written consent of the adverse party; and leave shall be
freely given when justice so requires and does not prejudice any other party"); Patton
v. Miller, 420 S.C. 471, 490, 804 S.E.2d 252, 262 (2017) ("In the absence of any
apparent or declared reason—such as undue delay, bad faith or dilatory motive on
the part of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of allowance of
the amendment, futility of amendment, etc.—the leave sought should, as the rules
require, be 'freely given.'" (quoting Forman v. Davis, 371 U.S. 178, 182 (1962))).

Hodges argues her seventh amended answer would have included her "holder in due
course" argument, which is analogous to her standing argument in her sixth amended
answer. However, we hold the circuit court heard and correctly determined that
Wells Fargo had standing because Wells Fargo is in possession of the original
promissory note, which is supported by the record. See S.C. Code Ann. § 36-3-301
(Supp. 2021) ("'Person entitled to enforce' an instrument means (i) the holder of the
instrument . . . .").
Hodges also argued her seventh amended answer added allegations about joint
tenancy to support her lack of subject matter jurisdiction claim; however, Hodges
had already raised this allegation in her third amended answer. Therefore, the circuit
court did not abuse its discretion in refusing to allow Hodges to amend her answer
and counterclaims for a seventh time as such amendments would not have
established new facts or claims and would have been an exercise in futility. See
Skydive Myrtle Beach, Inc. v. Horry Cnty., 426 S.C. 175, 182, 826 S.E.2d 585, 589
(2019) ("In rare cases, however, a trial court may deny a motion to amend if the
amendment would be clearly futile.").

As to Hodges's second argument, we find that this issue, when viewed in the light
most favorable to Hodges, is without merit because she failed to show any genuine
issue of material fact existed. Thus, Wells Fargo was entitled to judgment as a matter
of law, and the circuit court did not err in granting summary judgment on Hodges's
counterclaims and affirmative defenses in Wells Fargo's favor. See Dawkins v.
Fields, 354 S.C. 58, 69, 580 S.E.2d 433, 438-39 (2003) ("In reviewing the grant of
a summary judgment motion, the Court applies the same standard as the trial court
under Rule 56(c), SCRCP: 'summary judgment is proper when "there is no genuine
issue as to any material fact and . . . the moving party is entitled to judgment as a
matter of law."'" (quoting Baughman v. Am. Tel. & Tel. Co., 306 S.C. 101, 114-15,
410 S.E.2d 537, 545 (1991))); id. at 69, 580 S.E.2d at 439 ("In determining whether
summary judgment is appropriate, the evidence and its reasonable inferences must
be viewed in the light most favorable to the nonmoving party.").

As to Hodges's third argument, the record shows no indication this argument was
raised to or ruled upon by the circuit court; therefore, it is not properly before this
court. See Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) ("It
is axiomatic that an issue cannot be raised for the first time on appeal, but must have
been raised to and ruled upon by the trial judge to be preserved for appellate
review."); Germain v. Nichol, 278 S.C. 508, 509, 299 S.E.2d 335, 335 (1983)
("Appellant has the burden of providing [an appellate court] with a sufficient record
upon which [the appellate court] can make its decision.").

As to Hodges's fourth argument, we find the record is insufficient to review this
issue. While it is clear Hodges brought this issue before the circuit court and the
circuit court ruled upon it, Hodges's interrogatories and Wells Fargo's responses are
not included in the record. See id. ("Appellant has the burden of providing [an
appellate court] with a sufficient record upon which [the appellate court] can make
its decision.").
As to Hodges's fifth argument, we find it abandoned because she did not present any
argument on this issue outside of the issue statement. See Fields v. Melrose Ltd.
P'ship, 312 S.C. 102, 106, 439 S.E.2d 283, 285 (Ct. App. 1993) ("An issue raised on
appeal but not argued in the brief is deemed abandoned and will not be considered
by the appellate court.").

As to Hodges's sixth and seventh arguments, we find these issues abandoned because
Hodges provided only short and conclusory statements without any supporting legal
authority aside from a cite to Rule 38(a), SCRCP, which states simply that the right
to a jury trial under the South Carolina Constitution or a state statute is preserved
inviolate. See Glasscock, Inc. v. U.S. Fid. & Guar. Co., 348 S.C. 76, 81, 557 S.E.2d
689, 691 (Ct. App. 2001) ("[S]hort, conclusory statements made without supporting
authority are deemed abandoned on appeal and therefore not presented for
review."). 1

As to Hodges's eighth argument, we find this issue without merit. The record
indicates Hodges did not make required mortgage payments after her mother, the
original mortgagor, died. Additionally, a secured creditor, such as Wells Fargo in
this action, is not required to file a claim against a decedent's estate if the secured
creditor is solely seeking to foreclose the mortgage and is not attempting to hold the
estate liable for the deficiency following the foreclosure sale. See S.C. Code Ann.
§ 62-3-104 (2022) (stating the probate code "has no application to a proceeding by
a secured creditor of the decedent to enforce his right to his security except as to any
deficiency judgment which might be sought therein"); In re Est. of Hover, 407 S.C.
194, 205, 754 S.E.2d 875, 881 (2014) ("[A] secured creditor may pursue foreclosure
proceedings on the security for the mortgage without presenting a claim against the
estate and, thus, may do so outside the time limits of the nonclaim statute."). Here,

1
To the extent Hodges argues the circuit court erred in granting summary judgment
on her claim for breach of fiduciary duty, we find this issue is without merit because
a fiduciary relationship cannot be created by the unilateral act of one party, Hodges
failed to cite to relevant authority showing a private cause of action for denial of a
loan modification exists, and Hodges failed to produce any evidence to support any
element for breach of fiduciary duty. See Spence v. Wright, 395 S.C. 148, 160, 716
S.E.2d 920, 926 (2011) (clarifying that the existence of a duty and whether the law
recognizes a duty are issues of law to be decided by the court); Regions Bank v.
Schmauch, 354 S.C. 648, 671, 582 S.E.2d 432, 444 (Ct. App. 2003) ("[T]he normal
relationship between a bank and its customer is one of creditor-debtor and not
fiduciary in nature."); id. ("[N]o fiduciary relationship between a bank and its
depositor exists when the bank is unaware of any special trust reposed in it.").
Wells Fargo waived its right to seek a deficiency judgment against Hodges's
mother's estate in its complaint. Therefore, the circuit court properly found it had
subject matter jurisdiction in this case.

To the extent Hodges argues unclean hands, joint tenancy, and bias by the circuit
court, these issues were not raised in Hodges's statement of issues on appeal. See
Rule 208(b)(1)(B), SCACR ("Ordinarily, no point will be considered which is not
set forth in the statement of the issues on appeal."). Further, we find these issues
abandoned on appeal, as they are supported only by conclusory arguments with little
to no relevant legal authority. See Glasscock, Inc., 348 S.C. at 81, 557 S.E.2d at 691
("[S]hort, conclusory statements made without supporting authority are deemed
abandoned on appeal and therefore not presented for review.").

To the extent Hodges argues about a deficiency judgment, foreclosure intervention,
bankruptcy, a bankruptcy-related res judicata argument, and issues with discovery,
we find these issues are not properly before this court as they were not included in
Hodges's initial brief nor were they included in her statement of issues on appeal.
See Rule 208(b)(1)(B), SCACR ("Ordinarily, no point will be considered which is
not set forth in the statement of the issues on appeal."); Rule 211(b), SCACR ("The
final brief(s) shall be identical to the brief(s) previously served under Rule
208 . . . ."). Further, even if these issues were properly before this court, it is unclear
based on the record whether Hodges raised these issues or if they were ruled upon
by the circuit court. See Wilder Corp., 330 S.C. at 76, 497 S.E.2d at 733 ("It is
axiomatic that an issue cannot be raised for the first time on appeal, but must have
been raised to and ruled upon by the trial judge to be preserved for appellate
review."); Germain, 278 S.C. at 509, 299 S.E.2d at 335 ("Appellant has the burden
of providing [an appellate court] with a sufficient record upon which [the appellate
court] can make its decision.").

AFFIRMED. 2

THOMAS, MCDONALD, and HEWITT, JJ., concur.

2
We decide this case without oral argument pursuant to Rule 215, SCACR.