Wilmington Savings Fund Society v. Furmanchik

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

Wilmington Savings Fund Society, FSB, d/b/a Christiana
Trust as Trustee of the American Mortgage Investment
Partners Fund I Trust, Respondent,

v.

Melissa Furmanchik; Masonborough at Park West
Association, Inc. and Wells Fargo Bank, N.A.,
Defendants,

Of whom Melissa Furmanchik is the Appellant.

Appellate Case No. 2014-000906

Appeal From Charleston County
Mikell R. Scarborough, Master-in-Equity

Unpublished Opinion No. 2015-UP-353
Heard June 2, 2015 – Filed July 15, 2015

AFFIRMED

Mary Leigh Arnold, of Mary Leigh Arnold, PA, of
Mount Pleasant, for Appellant.

Jason David Wyman, of Rogers Townsend & Thomas,
PC, of Columbia, for Respondent.
PER CURIAM: In this foreclosure action, Melissa Furmanchik argues the master-
in-equity erred by (1) granting sua sponte relief, (2) determining Selene RMOF
REO Acquisition, L.L.C. (Selene) had standing to pursue foreclosure, (3)
determining Selene's evidence was sufficient to establish foreclosure, and (4)
awarding interest to Selene.1 We affirm pursuant to Rule 220(b), SCACR, and the
following authorities:

1. As to whether the master-in-equity erred by granting sua sponte relief: Herron
v. Century BMW, 395 S.C. 461, 465, 719 S.E.2d 640, 642 (2011) ("At a minimum,
issue preservation requires that an issue be raised to and ruled upon by the trial
judge."); Ex parte McMillan, 319 S.C. 331, 335, 461 S.E.2d 43, 45 (1995) (holding
a party cannot acquiesce to an issue at trial and then complain on appeal);
Walterboro Cmty. Hosp. v. Meacher, 392 S.C. 479, 493, 709 S.E.2d 71, 78 (Ct.
App. 2011) (stating for an issue to be preserved for appellate review, it must have
been raised to and ruled upon by the trial court, raised by the appellant, raised in a
timely manner, and raised to the trial court with sufficient specificity); Patterson v.
Reid, 318 S.C. 183, 185, 456 S.E.2d 436, 437 (Ct. App. 1995) ("A party cannot for
the first time raise an issue by way of a Rule 59(e)[, SCRCP,] motion which could
have been raised at trial.").

2. As to whether the master-in-equity erred by determining Selene had standing to
pursue foreclosure: Rule 17(a), SCRCP ("Every action shall be prosecuted in the
name of the real party in interest."); Smiley v. S.C. Dep't of Health & Envtl.
Control, 374 S.C. 326, 329, 649 S.E.2d 31, 32 (2007) (noting standing has three
components, the first of which is the plaintiff must have suffered an injury in fact);
id. at 329, 649 S.E.2d at 32-33 (stating the second component of standing is there
must be a causal connection between the injury and the conduct complained of, so
that the injury is fairly traceable to the challenged action of the defendant and not
the result of the independent action of some third party not before the court); id. at
329, 649 S.E.2d at 33 (noting the third component of standing is that it must be
"likely," as opposed to merely "speculative," that the injury will be "redressed by a
favorable decision"); S.C. Code Ann. § 36-3-205(b) (Supp. 2014) ("When indorsed
in blank, an instrument becomes payable to bearer and may be negotiated by
transfer of possession alone until specially indorsed."); S.C. Code Ann. § 36-3-301
(Supp. 2014) (noting the holder of an instrument is entitled to enforce the

1
As indicated in the caption, we grant Selene's motion to substitute Wilmington
Savings Fund Society, FSB, d/b/a Christiana Trust as Trustee of the American
Mortgage Investment Partners Fund I Trust, as the respondent in this action.
instrument); In re Woodberry, 383 B.R. 373, 377 (Bankr. D.S.C. 2008)
(acknowledging that "[p]ossession of a bearer instrument is prima facie evidence
of ownership" under South Carolina law); BAC Home Loan Servicing, L.P. v.
Kinder, 398 S.C. 619, 623, 731 S.E.2d 547, 549 (2012) ("[T]he assignment of a
mortgage does not need to be recorded, and failure to do so has no effect on the
rights of the assignee."); Bank of Am., N.A. v. Draper, 405 S.C. 214, 223, 746
S.E.2d 478, 482 (Ct. App. 2013) ("A holder is a person in possession of [an]
instrument drawn, issued, transferred, or indorsed to him."); id. ("'[T]here is a
general view, which has been accepted in this jurisdiction and others, that a loan
servicer is a "party in interest" and has standing by virtue of its pecuniary interest
in collecting payments under the terms of the note and mortgage.'" (quoting In re
Neals, 459 B.R. 612, 617 (Bankr. D.S.C. 2011))); S.C. Code Ann. § 36-3-204(a)
(Supp. 2014) ("For the purpose of determining whether a signature is made on an
instrument, a paper affixed to the instrument is a part of the instrument."); Cannon
v. S.C. Dep't of Prob., Parole & Pardon Servs., 371 S.C. 581, 584, 641 S.E.2d 429,
430 (2007) ("It is presumed the Legislature, in adopting an amendment to a statute,
intended to make some change in the existing law."); Aristizabal v. I. J. Woodside-
Div. of Dan River, Inc., 268 S.C. 366, 370, 234 S.E.2d 21, 23 (1977) (stating that
when the legislature removed the word "written" from the notice requirement of
section 72-301, oral or actual notice were thereafter sufficient); 2008 S.C. Acts
204, § 2 (amending the statutory language pertaining to indorsements by removing
the requirement that a paper be "firmly affixed" in order to become an extension of
the instrument and instead requiring a paper to merely be "affixed").

3. As to whether the master-in-equity erred by determining Selene's evidence was
sufficient to establish foreclosure: Rule 602, SCRE ("A witness may not testify to a
matter unless evidence is introduced sufficient to support a finding that the witness
has personal knowledge of the matter. Evidence to prove personal knowledge
may, but need not, consist of the witness' own testimony."); Rule 803(6), SCRE
(setting forth the business records exception to the hearsay rule); State v. Rice, 375
S.C. 302, 330-31, 652 S.E.2d 409, 423 (Ct. App. 2007) (noting the business
records exception in Rule 803(6) is "[p]atterned after the South Carolina Act and
the Federal Rules"), overruled on other grounds by State v. Byers, 392 S.C. 438,
710 S.E.2d 55 (2011); Midfirst Bank, SSB v. C.W. Haynes & Co., 893 F. Supp.
1304, 1310 (D.S.C. 1994) (holding exhibits can be admitted as business records of
an entity, even when that entity was not the maker of those records, so long as the
other requirements of Rule 803(6) of the Federal Rules of Civil Procedure are met
and the circumstances indicate the records are trustworthy), aff'd, 87 F.3d 1308
(4th Cir. 1996); id. at 1311 ("Rule 803(6) does not require the testifying witness to
have personally participated in the creation of the document or to know who
actually recorded the information."); id. ("Documents may properly be admitted
under this Rule as business records even though they are the records of a business
entity other than one of the parties, and even though the foundation for their receipt
is laid by a witness who is not an employee of the entity that owns and prepared
them." (internal quotation marks omitted)); id. ("Rule 803(6) does not require the
documents be prepared by the testifying business."); id. ("[T]he business records
exception should be liberally construed to avoid the former archaic practice of
requiring authentication by the preparer of the record."); Twelfth RMA Partners,
L.P. v. Nat'l Safe Corp., 335 S.C. 635, 642, 518 S.E.2d 44, 48 (Ct. App. 1999)
(finding a witness's testimony was admissible under the business records exception
when the witness testified about records that were part of the file she maintained in
her employer's regular course of business); id. (noting that while the witness's
testimony merely conveyed information from a person "with knowledge" at the
time the records were created, such a situation was expressly allowed under Rule
803(6)); Herron, 395 S.C. at 465, 719 S.E.2d at 642 ("At a minimum, issue
preservation requires that an issue be raised to and ruled upon by the trial judge.");
Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) ("[A]n
objection must be sufficiently specific to inform the trial court of the point being
urged by the objector.").

4. As to whether the master-in-equity erred by awarding interest to Selene: Rhodus
v. Goins, 129 S.C. 40, 41, 123 S.E. 645, 645-46 (1924) ("A note is a written
instrument, and in computing the amount due thereon in principal and interest the
computation must be made in accordance with the terms of said note.").

AFFIRMED.

THOMAS, KONDUROS, and GEATHERS, JJ., concur.