Nationstar Mortgage LLC v. Barbara A. Gibbs

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

Nationstar Mortgage LLC, Respondent,

v.

Barbara A. Gibbs, Melvin E. Gibbs, and Westbrook
Phase IV Homeowner's Association, Defendants,

Of whom Barbara A. Gibbs and Melvin E. Gibbs are the
Appellants.

Appellate Case No. 2019-000486

Appeal From Florence County
Michael G. Nettles, Circuit Court Judge

Unpublished Opinion No. 2022-UP-360
Submitted June 1, 2022 – Filed September 21, 2022

AFFIRMED

Barbara A. Gibbs and Melvin E. Gibbs, pro se.

H. Guyton Murrell, of Scott and Corley, P.A., of
Columbia, and Thomas R. McPherson, III, of
McGuireWoods LLP, of Charlotte, NC, for Nationstar
Mortgage, LLC.
PER CURIAM: In this foreclosure action, Barbara A. Gibbs and Melvin E. Gibbs
(Homeowners) appeal an order granting summary judgment to Nationstar
Mortgage, LLC, 1 arguing the circuit court erred in (1) denying their motion to
dismiss, (2) granting summary judgment although discovery was not completed,
and (3) exercising jurisdiction. The parties also filed supplemental briefs
addressing the effect of Barbara Gibbs' filing of bankruptcy, and Nationstar filed a
motion to dismiss. We affirm pursuant to Rule 220(b), SCACR. 2

1. We hold the circuit court did not err in denying Homeowners' motion to
dismiss. See Toussaint v. Ham, 292 S.C. 415, 416, 357 S.E.2d 8, 9 (1987) ("A
ruling on a 12(b)(6) motion to dismiss must be based solely upon the allegations
set forth on the face of the complaint and the motion cannot be sustained if facts
alleged and inferences reasonably deducible therefrom would entitle the plaintiff to
any relief on any theory of the case."); Pitts v. Jackson Nat'l Life Ins. Co., 352 S.C.
319, 328–29, 574 S.E.2d 502, 506 (Ct. App. 2002) (finding "the circuit court
implicitly converted the motions to dismiss into summary judgment motions").
Here, we find there were facts alleged that entitled Nationstar to relief, including
service of notice of the right to foreclosure intervention; thus, the circuit court did
not err in declining to grant the motion to dismiss.

2. We hold the circuit court did not err in granting summary judgment. First,
Homeowners failed to demonstrate reasons why they needed additional time for
discovery. Homeowners had more than five years to pursue discovery. We find
Homeowners were afforded a full and fair opportunity to conduct discovery, and
summary judgment was not premature. See Rule 56(e), SCRCP ("When a motion
for summary judgment is made and supported as provided in this rule, an adverse
party may not rest upon the mere allegations or denials of his pleading, but his
response, by affidavits or as otherwise provided in this rule, must set forth specific
facts showing that there is a genuine issue for trial. If he does not so respond,
summary judgment, if appropriate, shall be entered against him."); Doe ex rel. Doe

1
On February 23, 2005, Barbara Gibbs signed a note to borrow $329,600, and
executed a mortgage with Bank of America (BOA) that encumbered real property
at 4257 Monterey Drive in Florence. The mortgage was assigned to Nationstar on
January 3, 2013. To the extent Homeowners argue Nationstar is not a party in
interest, we find no merit to the argument. See Bank of Am., N.A. v. Draper, 405
S.C. 214, 220, 746 S.E.2d 478, 481 (Ct. App. 2013) ("An assignee stands in
the shoes of its assignor.").
2
We decide this case without oral argument pursuant to Rule 215, SCACR.
v. Batson, 345 S.C. 316, 320, 548 S.E.2d 854, 856 (2001) (providing that Rule
56(e) "requires a party opposing summary judgment to come forward with
affidavits or other supporting documents demonstrating the existence of a genuine
issue for trial"); Savannah Bank, N.A. v. Stalliard, 400 S.C. 246, 253, 734 S.E.2d
161, 165 (2012) (finding Appellant "had ample time during discovery to uncover
evidence and speak with any potential witnesses . . . [and i]f Appellant believed he
did not have sufficient time, Appellant should have promptly filed a motion
seeking additional discovery time"). Second, we affirm the circuit court's grant of
summary judgment. Nationstar submitted evidence as to insufficient payments and
Homeowners' failure to secure insurance, which constituted Homeowners' default.
Although Homeowners argue they provided evidence of payments, we find it was
not enough to refute Nationstar's proof of default. See Schmidt v. Courtney, 357
S.C. 310, 317, 592 S.E.2d 326, 331 (Ct. App. 2003) ("Once the party moving for
summary judgment meets the initial burden of showing an absence of evidentiary
support for the opponent's case, the opponent cannot simply rest on mere
allegations or denials contained in the pleadings."); id. (requiring the non-moving
party to "come forward with specific facts showing there is a genuine issue for
trial"); Town of Hollywood v. Floyd, 403 S.C. 466, 477, 744 S.E.2d 161, 166
(2013) ("[I]t is not sufficient for a party to create an inference that is not reasonable
or an issue of fact that is not genuine."). Last, we find no error by the circuit court
regarding Homeowners' demand for a jury trial. See Lester v. Dawson, 327 S.C.
263, 267, 491 S.E.2d 240, 242 (1997) ("[T]he relevant question in determining the
right to trial by jury is whether an action is legal or equitable; there is no right to
trial by jury for equitable actions."); Wachovia Bank, Nat'l Ass'n v. Blackburn, 407
S.C. 321, 328, 755 S.E.2d 437, 441 (2014) (finding a foreclosure action arises in
equity); S.C. Cmty. Bank v. Salon Proz, LLC, 420 S.C. 89, 96, 800 S.E.2d 488,
491–92 (Ct. App. 2017) (explaining a party in an equitable action must raise
counterclaims that are legal and compulsory to be entitled to a jury trial). To the
extent Homeowners raise a counterclaim, we find it is not compulsory. See
Mullinax v. Bates, 317 S.C. 394, 396, 453 S.E.2d 894, 895 (1995) (stating the test
for determining if a counterclaim is compulsory is whether there is a logical
relationship between the claim and the counterclaim).

3. We hold the circuit court did not err in exercising jurisdiction. The case was
originally filed in the proper county, Florence County, which is where the property
is located. The case was transferred to Horry County after Homeowners sued the
Florence County special referee and the referee recused himself. The Horry
County master-in-equity recused herself after Homeowners sued her. The Horry
County Court of Common Pleas issued an order granting Nationstar's motion to
change venue to Florence County. We find the Florence County Court of
Common Pleas had jurisdiction to hear the case. See S.C. Code Ann. § 15-7-10
(Supp. 2021) (providing actions for the foreclosure of a mortgage of real property
"must be tried in the county in which the subject of the action or some part of the
property is situated, subject to the power of the court to change the place of trial in
certain cases"); S.C. Code Ann. § 15-7-100(A) (Supp. 2021) ("The court may
change the place of trial if: . . . (2) there is reason to believe that a fair and
impartial trial cannot be had there . . . ."); Patel v. Patel, 359 S.C. 515, 524, 599
S.E.2d 114, 118 (2004) (explaining a judge should disqualify himself if "his
impartiality might reasonably be questioned"); Ness v. Eckerd Corp., 350 S.C. 399,
404, 566 S.E.2d 193, 196 (Ct. App. 2002) ("The decision to recuse is within
the discretion of the trial judge.").

4. We deny Nationstar's motion to dismiss. In its motion to dismiss, Nationstar
argues Barbara Gibbs is judicially and equitably estopped from asserting she never
missed a payment because her bankruptcy3 records indicate she conceded the
existence of the arrearage and they expressly provide for repayment of the debt.
See Cothran v. Brown, 357 S.C. 210, 215, 592 S.E.2d 629, 631 (2004) (explaining
the purpose of judicial estoppel "is to ensure the integrity of the judicial process");
Strickland v. Strickland, 375 S.C. 76, 85, 650 S.E.2d 465, 471 (2007) ("[E]quitable
estoppel focuses on a party's detrimental reliance on another party's conduct . . . .").
We find no threat to the integrity of the judicial process and no detrimental reliance
by Nationstar.

AFFIRMED. 4

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

3
The bankruptcy court has been informed of this appeal and issued an order lifting
the automatic stay of this appeal.
4
During the pendency of this appeal, Homeowners filed a petition with the
Supreme Court of South Carolina. By order dated August 11, 2022, our supreme
court denied the petition. See M. Eugene Gibbs, Esq., and Barbara A. Gibbs v.
James E. Lockemy, in their official capacity as Chief Judge Court of Appeals and
Judge Thomas E. Huff, Judge H. Bruce Williams, Judge Paula H. Thomas, Judge
Aphrodite K. Konduros, Judge John D. Geathers, Judge Stephanie P. McDonald,
Judge D. Garrison Hill, Judge Blake A. Hewitt, "Emergency" Petition for Writ of
Mandamus and/or in the alternative for Writ of Certiorari, received November 3,
2021. Appellate Case No. 2021-001282.