U. S. Bank National Association v. Briggs

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

U.S. Bank National Association as Trustee under an Agreement dated March
1, 1999 (EQCC Home Equity Loan Trust 1999-3),       
Respondent,

v.

Floyd Briggs, Ezetha Green, also known as Eretha Green and as Eretha
M. Green-Daniels, and Michael Daniels,       
Defendants,

Of whom Ezetha Green, also known as Eretha Green and as Eretha M. Green-Daniels,       
Appellants.

Appeal From Richland County

Alison Renee Lee, Circuit Court Judge

Unpublished Opinion No. 2003-UP-661

Submitted September 17, 2003 – Filed
November 17, 2003

AFFIRMED

Eretha M. Green Daniels, of Columbia, for Appellant. 

Gary Howard Johnson, II, of Columbia,
for Respondent.

PER CURIAM:  In this foreclosure action,
Eretha Green appeals the grant of summary judgment on her counterclaim in favor
of U.S. Bank National Association.  We affirm.
[1]

FACTS AND PROCEDURAL HISTORY

Green’s property was scheduled to be sold at a foreclosure
sale when she contracted to sell it to Floyd Briggs.  The contract states the
purchase price was “the amount necessary to pay the back payments on the first
mortgage.”  A bolded passage of the contract explains:  “It is understood by
Seller that there is to be no equity paid to Seller at closing.  Seller acknowledges
that they are in foreclosure or about to be in foreclosure and Purchaser will
make up the back payments on the mortgage.”  Briggs obtained an $81,000 loan
from EquiCredit Corporation to purchase the property and in an affidavit claimed
the conveyance was an arm’s length transaction in which he paid $79,059.50. 
Although this figure matched the purchase price indicated on the deed, only
$66,350 was used to pay Green’s lienholder.  It appears Green’s note to her
lienholder was paid in full.  

Shortly after the closing, EquiCredit assigned its
interest in Briggs’ note and mortgage to U.S. Bank.  Green did not move out
of the residence, and Briggs did not pay on his note.  U.S. Bank then brought
suit to foreclose on the property.  In his answer, Briggs cross-claimed against
Green, who was named in the foreclosure action, asserting she had “wrongfully
and illegally refused to vacate the premises.”  Green did not respond timely
and the case was referred to the master in equity with the consent of the parties
not in default.  Green was later given leave to file an answer.  In her answer,
Green counterclaimed against U.S. Bank and Briggs, asserting they had misrepresented
the transaction to her and improperly arranged for her not to be paid for her
property.  Green demanded a jury trial and with U.S. Bank’s consent, the master
ordered Green’s claim to be placed on the jury roster.

U.S. Bank later moved for summary judgment
against Green on her claim.  The court granted the motion and Green moved for
reconsideration.  In a hearing on the motion for reconsideration, Green’s representative,
Thurmond Guess, argued the circuit court’s decision to grant summary judgment
was contrary to the master’s order which indicated the claim should be heard
by a jury.  The circuit court explained the two orders were not contrary and
announced a form order would be forthcoming.

LAW/ANALYSIS

Clearly, one judge cannot overrule or
set aside an order of another judge of the same court.  Rule 43(l), SCRCP; Charleston
County Dept. of Soc. Servs. v. Father, 317 S.C. 283, 288, 454 S.E.2d 307,
310 (1995).  This longstanding rule was not violated here because the orders
in question are not in conflict.  The master ordered, with the parties’ consent,
to have Green’s legal claim put on the jury trial roster.  See Loyola
Federal Sav. Bank v. Thomasson Props., 318 S.C. 92, 93, 456 S.E.2d 423,
424 (Ct. App 1995) (noting a party who asserts a legal claim is entitled to
a jury trial whereas a party who asserts an equitable claim is not entitled
to a jury trial).  This ruling did not protect Green’s claim against a motion
for summary judgment, however.  Summary judgment is proper where no genuine
issue of material fact exists and the moving party is entitled to judgment as
a matter of law.  Rule 56(c), SCRCP.  Because Green does not challenge the propriety
of the grant of summary judgment on its merits, the order on appeal is

AFFIRMED.

HUFF, STILWELL, and BEATTY, JJ., concur.

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