American Community Bank v. Brown

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

American Community Bank, a division of Yadkin Valley
Bank & Trust, Respondent,

v.

Michael R. Brown; C. W. Horne; Shortt Auction &
Realty Co., Inc.; Bank of America, N.A.; and Jaguar
Portfolio, LLC, Defendants,

Of Whom Michael R. Brown is Appellant.

Appellate Case No. 2012-213587

Appeal From Chesterfield County
J. Michael Baxley, Circuit Court Judge

Unpublished Opinion No. 2015-UP-320
Submitted March 1, 2015 – Filed July 1, 2015

AFFIRMED

John Martin Foster, of Rock Hill, for Appellant.

James W. Sheedy and Susan Elizabeth Driscoll, both of
Driscoll Sheedy, P.A., of Charlotte, NC, for Respondent.
PER CURIAM: Michael R. Brown appeals the trial court's grant of summary
judgment in favor of American Community Bank (the Bank). On appeal, Brown
argues the trial court erred in granting the Bank's motion for summary judgment
because the evidence showed a genuine issue of material fact existed as to whether
the Bank (1) waived its rights to enforce its mortgage lien and collect the
outstanding balance on its loan to Brown, (2) improperly failed to satisfy Brown's
mortgage, and (3) violated the South Carolina Unfair Trade Practices Act
(SCUTPA). We affirm pursuant to Rule 220(b), SCACR, and the following
authorities:

1. We find Brown presented no evidence that the Bank waived its right to collect
the outstanding balance on its loan. 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 [appellate court] applies the same standard as the trial court under Rule
56(c), SCRCP . . . ."); Rule 56(c), SCRCP (stating summary judgment is
appropriate "if 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"); Dawkins, 354 S.C. 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."); King v. James, 388 S.C. 16, 30, 694 S.E.2d 35, 42 (Ct. App. 2010) ("A
waiver is a voluntary and intentional abandonment or relinquishment of a known
right. . . . In order for a party to waive a right, the party must have known of the
right and known that the right was being abandoned.").

2. Brown admitted he never paid off the mortgage; therefore, we find the Bank did
not fail to satisfy his mortgage. See S.C. Code 29-3-310 (2007) ("Any holder of
record of a mortgage who has received full payment or satisfaction or to whom a
legal tender has been made of his debts, damages, costs, and charges secured by
mortgage of real estate shall, at the request . . . of the mortgagor . . ., enter
satisfaction in the proper office on the mortgage which shall forever thereafter
discharge and satisfy the mortgage." (emphasis added)); Dykeman v. Wells Fargo
Home Mortg., Inc., 381 S.C. 333, 339, 673 S.E.2d 804, 807 (2009) (stating
payment of the mortgage is the first step in the mortgage satisfaction process set
forth in section 29-3-310).

3. We find the trial court properly granted summary judgment as to Issue 3
because Brown presented no evidence that his claims impacted the public interest.
See Dawkins, 354 S.C. at 69, 580 S.E.2d at 438-39 ("In reviewing the grant of a
summary judgment motion, the [appellate court] applies the same standard as the
trial court under Rule 56(c), SCRCP . . . ."); Rule 56(c), SCRCP (stating summary
judgment is appropriate "if 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"); Dawkins, 354 S.C. 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."); Noack Enterp., Inc. v. Country Corner Interiors of Hilton Head Island,
Inc., 290 S.C. 475, 479, 351 S.E.2d 347, 349-50 (Ct. App. 1986) ("An unfair or
deceptive act or practice that affects only the parties to a trade or a commercial
transaction is beyond [SCUTPA's] embrace . . . . To be actionable under
[SCUTPA], therefore, the unfair or deceptive act or practice in the conduct of trade
or commerce must have an impact upon the public interest. [SCUTPA] is not
available to redress a private wrong where the public interest is unaffected."
(citation omitted)); Schnellmann v. Roettger, 368 S.C. 17, 23, 627 S.E.2d 742, 746
(Ct. App. 2006), aff'd as modified, 373 S.C. 379, 645 S.E.2d 239 (2007) ("An
impact on the public interest may be shown if the acts or practices have the
potential for repetition. The potential for repetition may be shown by proving that
the same kind of actions occurred in the past or by showing that the procedures
employed by the defendant create a potential for repetition of the deceptive
practices." (citation omitted)).

AFFIRMED.1

SHORT, LOCKEMY, and McDONALD, JJ., concur.

1
We decide this case without oral argument pursuant to Rule 215, SCACR.