The Bank of New York Mellon v. Lanier

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

The Bank of New York Mellon, f/k/a The Bank of New
York as successor-in-interest to JPMorgan Chase Bank,
N.A. as successor in interest by merger to Bank One,
N.A. as Trustee for Structured Asset Mortgage
Investments Inc., Mortgage Pass-Through Certificates,
Series 2002-AR4, Respondent,

v.

Cathy C. Lanier; Branch Banking and Trust Company,
Regions Bank, Defendants,

Of Whom Cathy C. Lanier is the Appellant.

Appellate Case No. 2017-000874

Appeal From Lexington County
James O. Spence, Master-in-Equity

Unpublished Opinion No. 2019-UP-284
Submitted June 3, 2019 – Filed August 7, 2019

AFFIRMED

S. Jahue Moore and John Calvin Bradley, Jr., both of
Moore Taylor Law Firm, P.A., of West Columbia, for
Appellant.
Benjamin Rush Smith, III and Nicholas Andrew Charles,
both of Nelson Mullins Riley & Scarborough, LLP, of
Columbia, for Respondent.

PER CURIAM: In this mortgage foreclosure action, Appellant Cathy C. Lanier
challenges the order of the master-in-equity granting summary judgment to the Bank
of New York Mellon ("Bank") on the issue of standing. Lanier argues the master
erred in excluding her expert's affidavit, finding there were no genuine issues of
material fact concerning Bank's standing to foreclose, and granting summary
judgment when discovery was incomplete. We affirm pursuant to Rule 220(b),
SCACR, and the following authorities:

1. The master properly excluded Lanier's expert's affidavit. See State v. Douglas,
411 S.C. 307, 316, 768 S.E.2d 232, 237 (Ct. App. 2014) ("The admission or
exclusion of evidence is [] subject to an abuse of discretion standard of review.");
Judy v. Judy, 384 S.C. 634, 641, 682 S.E.2d 836, 839 (Ct. App. 2009) ("The
[master's] ruling to admit or exclude evidence will only be reversed if it constitutes
an abuse of discretion amounting to an error of law."). On appeal, Lanier does not
challenge the master's finding that the documents relied upon by Lanier's expert and
attached to his affidavit were not authenticated, and Lanier only offers a conclusory
parenthetical to dispute the finding that the documents constituted hearsay. See
Biales v. Young, 315 S.C. 166, 168, 432 S.E.2d 482, 484 (1993) ("Failure to argue
is an abandonment of the issue and precludes consideration on appeal."); Glasscock,
Inc. v. U.S. Fid. & Guar. Co., 348 S.C. 76, 81, 557 S.E.2d 689, 691 (Ct. App. 2001)
("South Carolina law clearly states that short, conclusory statements made without
supporting authority are deemed abandoned on appeal and therefore not presented
for review."). Because these issues were abandoned, the master's finding that the
documents were inadmissible is the law of the case. See Atl. Coast Builders and
Contractors, LLC v. Lewis, 398 S.C. 323, 329, 730 S.E.2d 282, 285 (2012) ("[A]n
unappealed ruling, right or wrong, is the law of the case."). Accordingly, the master
did not err in excluding the documents or the affidavit to the extent it directly
referenced inadmissible information from the documents. See Rule 56(e), SCRCP
("Supporting and opposing affidavits shall be made on personal knowledge [and]
shall set forth such facts as would be admissible in evidence . . . ." (emphasis added));
Hall v. Fedor, 349 S.C. 169, 175, 561 S.E.2d 654, 657 (Ct. App. 2002) ("Our
appellate courts have interpreted Rule 56(e) to mean materials used to support or
refute a motion for summary judgment must be those [that] would be admissible in
evidence."); Rule 703, SCRE ("If of a type reasonably relied upon by experts in the
particular field in forming opinions or inferences upon the subject, the facts or data
need not be admissible in evidence."); Allegro, Inc. v. Scully, 400 S.C. 33, 46–47,
733 S.E.2d 114, 122 (Ct. App. 2012) ("However, Rule 703 does not allow the
admission of hearsay evidence simply because an expert used it in forming his
opinion; the rule only provides the expert can give an opinion based on facts or data
that were not admitted into evidence." (emphasis added)).

Additionally, we find the master properly excluded the expert affidavit on the ground
that it contained improper legal conclusions, as the affidavit mainly provided reasons
why summary judgment should be granted in favor of Lanier as a matter of law. See
Rule 702, SCRE ("If . . . specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may testify thereto in
the form of an opinion or otherwise."); Dawkins v. Fields, 354 S.C. 58, 66, 580
S.E.2d 433, 437 (2003) ("In general, expert testimony on issues of law is
inadmissible."); id. at at 66–67, 580 S.E.2d at 437 ("Although [the expert] arguably
offered some helpful, factual information, the overwhelming majority of the
affidavit is simply legal argument as to why summary judgment should be denied.
For that reason, we hold the [circuit] court correctly refused to consider it . . . .").

2. The master properly granted Bank's motion for summary judgment on standing,
as there were no genuine issues of material fact concerning Bank's standing to
foreclose. See Turner v. Milliman, 392 S.C. 116, 121–22, 708 S.E.2d 766, 769
(2011) ("When reviewing a grant of summary judgment, appellate courts apply the
same standard applied by the trial court pursuant to Rule 56(c), SCRCP."); Rule
56(c), SCRCP (providing that summary judgment shall be granted when "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"); Lanham v.
Blue Cross & Blue Shield of S.C., Inc., 349 S.C. 356, 362, 563 S.E.2d 331, 333
(2002) ("On appeal from an order granting summary judgment, the appellate court
will review all ambiguities, conclusions, and inferences arising in and from the
evidence in a light most favorable to the non-moving party below."); see also Powell
ex rel. Kelley v. Bank of Am., 379 S.C. 437, 444, 665 S.E.2d 237, 241 (Ct. App.
2008) ("Standing refers to[] '[a] party's right to make a legal claim or seek judicial
enforcement of a duty or right.'" (second alteration in original) (quoting Black's Law
Dictionary 1413 (7th ed. 1999))); Bank of Am., N.A. v. Draper, 405 S.C. 214, 220,
746 S.E.2d 478, 481 (Ct. App. 2013) ("Generally, a party must be a real party in
interest to the litigation to have standing." (quoting Hill v. S.C. Dep't of Health &
Envtl. Control, 389 S.C. 1, 22, 698 S.E.2d 612, 623 (2010))); Patton v. Miller, 420
S.C. 471, 479, 804 S.E.2d 252, 256 (2017) ("A real party in interest is 'the party who,
by the substantive law, has the right sought to be enforced.'" (quoting Draper, 405
S.C. at 220, 746 S.E.2d at 481)); Deep Keel, LLC v. Atl. Private Equity Grp., LLC,
413 S.C. 58, 67 n.7, 773 S.E.2d 607, 612 n.7 (Ct. App. 2015) ("'[A] promissory note
secured by a real estate mortgage' is 'a negotiable instrument.'" (quoting Swindler v.
Swindler, 355 S.C. 245, 247, 250, 584 S.E.2d 438, 439, 440 (Ct. App. 2003))); S.C.
Code Ann. § 36-3-102(a) (Supp. 2018) ("This chapter applies to negotiable
instruments."); S.C. Code Ann. § 36-3-301 (Supp. 2018) ("'Person entitled to
enforce' an instrument means (i) the holder of the instrument . . . ."); S.C. Code Ann.
§ 36-1-201(20) (2003)1 (stating that a holder is "a person who is in possession of a
document of title or an instrument or a certificated investment security drawn,
issued, or indorsed to him or to his order or to bearer or in blank"); Draper, 405 S.C.
at 221, 746 S.E.2d at 481 ("Under South Carolina law one finds the general
proposition that the plaintiff in a foreclosure suit should be the real, beneficial owner
of the mortgage debt." (quoting In re Woodberry, 383 B.R. 373, 379 (Bankr. D.S.C.
2008)); U.S. Bank Tr. Nat'l Ass'n v. Bell, 385 S.C. 364, 374, 684 S.E.2d 199, 204
(Ct. App. 2009) ("A mortgage and a note are separate securities for the same debt,
and a mortgagee who has a note and mortgage to secure a debt has the option to
either bring an action on the note or to pursue a foreclosure action.").

As the party moving for summary judgment, the initial burden was on Bank to prove
standing. See Peterson v. W. Am. Ins. Co., 336 S.C. 89, 94, 518 S.E.2d 608, 610 (Ct.
App. 1999) ("Under Rule 56(c), SCRCP, the party seeking summary judgment has
the initial burden of demonstrating the absence of a genuine issue of material fact.").
In support of its motion for summary judgment, Bank submitted copies of the
original note and mortgage, copies of allonges2 to the note and assignments3 of the

1
Section 36-1-201 was amended in 2014. However, because the foreclosure action
was filed in 2013, we refer to the previous version of the statute.
2
An allonge is "[a] slip of paper sometimes attached to a negotiable instrument for
the purpose of receiving further indorsements when the original paper is filled with
indorsements." Allonge, Black's Law Dictionary (11th ed. 2019).
3
Lanier argues the assignments are invalid because Bank cannot produce a complete
chain of title for the mortgage. However, South Carolina law does not require the
assignment of a mortgage to be recorded, and Lanier does not cite any authority in
support of her argument. See 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.");
see also Glasscock, 348 S.C. at 81, 557 S.E.2d at 691 ("South Carolina law clearly
states that short, conclusory statements made without supporting authority are
deemed abandoned on appeal and therefore not presented for review.").
mortgage, and the affidavit of Joseph G. Devine, Jr., an authorized signer with
JPMorgan Chase ("Chase"). Devine indicated that Chase was the mortgage servicer
and attorney-in-fact4 for Bank and that Chase was in possession of the original note,
mortgage, and allonges. Accordingly, we find Bank established that it is a holder of
the note and mortgage and, as a result, met its initial burden of demonstrating
standing.

Because Bank met its initial burden, Lanier was required to submit at least a scintilla
of evidence to withstand summary judgment. See Fowler v. Hunter, 380 S.C. 121,
125, 668 S.E.2d 803, 805 (Ct. App. 2008) ("[T]he non-moving party must set forth
specific facts demonstrating to the court there is a genuine issue for trial."); Hancock
v. Mid-South Mgmt. Co., Inc., 381 S.C. 326, 330, 673 S.E.2d 801, 803 (2009) ("[I]n
cases applying the preponderance of the evidence burden of proof, the non-moving
party is only required to submit a mere scintilla of evidence in order to withstand a
motion for summary judgment."). However, Lanier did not present any evidence to
the master tending to show that Bank was not the holder of the note and mortgage.
Rather, Lanier simply asserted in her pleadings, motions, and arguments5 that the
assignments and allonges were fraudulently produced and that Bank was not in
possession of her note and mortgage. See Fowler, 380 S.C. at 125, 668 S.E.2d at
805 ("[W]hen a party has moved for summary judgment[,] the opposing party may
not rest upon the mere allegations or denials of his pleading to defeat it."); Humana
Hospital-Bayside v. Lightle, 305 S.C. 214, 216, 407 S.E.2d 637, 638 (1991) ("Where
the [opposing party] relies solely upon the pleadings, files no counter-affidavits, and
makes no factual showing in opposition to a motion for summary judgment, the
lower court is required under Rule 56[] to grant summary judgment[] if, under the
facts presented by the [moving party], he was entitled to judgment as a matter of
law." (emphasis added)). Moreover, on appeal, Lanier cites only to the complaint,
the answer, her motion for and memo in support of summary judgment, her motion
to reconsider, and her arguments during the summary judgment hearing. See West
v. Gladney, 341 S.C. 127, 135, 533 S.E.2d 334, 338 (Ct. App. 2000) ("[T]his court

4
"[An attorney-in-fact] steps into the shoes of the grantor and is basically the alter
ego of the grantor." Bennett v. Carter, 421 S.C. 374, 382, 807 S.E.2d 197, 201
(2017).
5
Lanier also submitted her own affidavit indicating she believed Bank's loan
documents were forged because she was only provided with copies of the note and
mortgage in lieu of the originals. However, we do not find Lanier's affidavit created
a genuine issue of material fact. See, e.g., Draper, 405 S.C. at 224, 746 S.E.2d at
483 (affirming summary judgment when the foreclosing bank produced a copy of
the note containing an indorsement).
ordinarily will not consider statements of fact presented only in an attorney's
argument in determining whether a genuine issue of material fact exists sufficient to
preclude summary judgment."). Therefore, we find the master did not err in granting
summary judgment to Bank as Lanier has not presented any evidence creating a
genuine issue of material fact.

3. Lanier's argument that summary judgment was premature because she did not
have enough time for discovery is not preserved for appellate review. See Staubes
v. City of Folly Beach, 339 S.C. 406, 412, 529 S.E.2d 543, 546 (2000) ("It is
well-settled that an issue cannot be raised for the first time on appeal, but must have
been raised to and ruled upon by the [master] to be preserved for appellate review.");
Rule 56(f), SCRCP ("Should it appear from the affidavits of a party opposing the
motion that he cannot for reasons stated present by affidavit facts essential to justify
his opposition, the court may refuse the application for judgment or may order a
continuance to permit affidavits to be obtained or depositions to be taken or
discovery to be had or may make such order as is just."); Doe ex rel. Doe v. Batson,
345 S.C. 316, 321, 548 S.E.2d 854, 857 (2001) ("Rule 56(f) requires the party
opposing summary judgment to at least present affidavits explaining why he needs
more time for discovery." (emphasis added)); Guinan v. Tenet Healthsystems of
Hilton Head, Inc., 383 S.C. 48, 54–55, 677 S.E.2d 32, 36 (Ct. App. 2009) ("A party
claiming summary judgment is premature because [it has] not been provided a full
and fair opportunity to conduct discovery must advance a good reason why the time
was insufficient under the facts of the case[] and why further discovery would
uncover additional relevant evidence and create a genuine issue of material fact.").
Lanier did not argue that summary judgment was premature because she did not
have enough time for discovery while the case was before the master nor did she
submit a Rule 56(f) affidavit. As such, Lanier did not advance a good reason why
the time for discovery was insufficient and why further discovery would uncover
additional relevant evidence and create a genuine issue of material fact. Therefore,
Lanier has not preserved this argument for appeal.

AFFIRMED. 6

WILLIAMS, GEATHERS, and HILL, JJ., concur.

6
We decide this case without oral argument pursuant to Rule 215, SCACR.