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Bank of North Carolina v. Bouscaren

United States District Court, D. South Carolina, Beaufort Division

December 9, 2014

Bank of North Carolina, as Successor in Interest to Beach First National Bank, Plaintiff,
v.
Donna M. Bouscaren, Individually; Donna M. Bouscaren, Trustee of the Donna M. Bouscaren Living Trust, March 15, 1993; Paul Gregory Bouscaren; Marie-Lise Bouscaren; Mark Christopher Bouscaren; Park Lane Hotel and Condominiums Association, Inc. f/k/a VHH Park Lane Owners Association, Inc.; VHH Park Lane HPR; Triton Sales Group 323, LLC; Hilton Head Anytime, LLC; and Triton Hospitality 323 LLC, Defendants. Donna M. Bouscaren, Individually; Donna M. Bouscaren, Trustee of the Donna M. Bouscaren Living Trust, March 15, 1993; Paul Gregory Bouscaren; Marie-Lise Bouscaren; and Mark Christopher Bouscaren, Third-Party Plaintiffs,
v.
David M. Kindle; Coastal Property Appraisals, Inc.; and Federal Deposit Insurance Corporation, as Receiver of Beach First National Bank, Myrtle Beach, Third-Party Defendants

For Donna M Bouscaren, Individually, Donna M Bouscaren, Trustee of the Donna M. Bouscaren Living Trust, dated March 15, 1993, Paul Gregory Bouscaren, Mark Christopher Bouscaren, Marie-Lise Bouscaren, Defendant: William A Scott, LEAD ATTORNEY, Pedersen and Scott, Charleston, SC, USA.

For Park Lane Hotel And Condominiums Association Inc, formerly known as VHH Park Lane Owners Association Inc, Vhh Park Lane Hpr, Triton Sales Group 323 LLC, Hilton Head Anytime LLC, Triton Hospitality 323 LLC, Defendant: Ellis Reed-Hill Lesemann, LEAD ATTORNEY, Lesemann and Barks LLC, Charleston, SC, USA.

For Donna M Bouscaren, Individually, Donna M Bouscaren, Trustee of the Donna M. Bouscaren Living Trust, Dated March 15, 1993, Paul Gregory Bouscaren, Marie-Lise Bouscaren, Mark Christopher Bouscaren, Thirdparty Plaintiff: William A Scott, LEAD ATTORNEY, Charleston, SC, USA.

For Federal Deposit Insurance Corporation, Receiver of Beach First National Bank, Myrtle Beach, Thirdparty Defendant: Larry D Cohen, LEAD ATTORNEY, Larry D Cohen Law Office, Charleston, SC, USA.

Page 622

ORDER

PATRICK MICHAEL DUFFY, United States District Judge.

This matter is before the Court on Third-Party Defendants David M. Kindle and Coastal Property Appraisals, Inc.'s (collectively " the Moving Defendants" ) Motion for Summary Judgment (" Motion" ) pursuant to Rule 56 of the Federal Rules of Civil Procedure (ECF No. 47). For the reasons set forth herein, the Moving Defendants' Motion for Summary Judgment is granted.

BACKGROUND

This case initially arose out of a foreclosure action brought by Bank of North Carolina (" BKNC" ), as Successor in Interest to Beach First National Bank (" Beach First" ), against Donna M. Bouscaren, et alia.

On June 5, 2007, Third-Party Plaintiff Donna M. Bouscaren (" Bouscaren" ) applied for a loan from Beach First with the intention of purchasing a condominium on Hilton Head Island, South Carolina. Prior to the execution of the loan application, Beach First selected a real estate appraisal company, Coastal Property Appraisals, Inc. (" Coastal" ), to evaluate the property. The appraisal was conducted by David M. Kindle (" Kindle" ), an employee of Coastal. In exchange for the loan, Bouscaren executed and delivered to Beach First a promissory note in the amount of $215,000.00. In order to secure payment of the note, Bouscaren, acting in her capacity as Trustee for the Donna M. Bouscaren Living Trust, dated March 15, 1993 (" Living Trust" ), executed and delivered to Beach First a mortgage and a guaranty, both dated June 5, 2007.

On April 9, 2010, the Federal Deposit Insurance Corporation (" FDIC" ) was appointed receiver for Beach First. Also on April 9, 2010, FDIC entered into a Purchase and Assumption Agreement with BKNC, whereby BKNC became the successor in interest to Beach First and became the owner and holder of the note and mortgage that are the subject of the underlying foreclosure action. On June 10, 2010, BKNC granted Bouscaren's request for a loan modification, which reduced the interest rate and therefore the monthly principal and interest payment on the initial note. On December 2, 2011, BKNC filed suit in state court against Bouscaren, both in her individual capacity and as Trustee for the Living Trust. The Complaint alleged that Bouscaren failed to fulfill her contractual obligations to make payments on the debt.[1]

On January 31, 2012, the Bouscarens filed an Answer, Counterclaim, and Third-Party Complaint (" Original Answer and Third-Party Complaint" ), counterclaiming against BKNC and asserting a third-party claim for negligence against Kindle and Coastal. In their Original Answer and Third-Party Complaint, the Bouscarens alleged that Beach First was negligent in

Page 623

selecting Coastal, and its employee Kindle, to conduct the appraisal and that BKNC, as successor in interest to Beach First, is liable to the Bouscarens for Beach First's acts or omissions. The Bouscarens also allege in the Original Answer and Third-Party Complaint that Kindle was negligent in his appraisal of the property and that both he and his employer, Coastal Property Appraisals, Inc., caused the Bouscarens to incur " damages and indebtedness beyond the actual value of the real property" due to their overvaluing of the property. (Bouscarens' Answer, Countercl., & Third-Party Compl. 12, ECF No. 1-2.) On June 7, 2012, the Bouscarens filed their Amended Answer and Third-Party Complaint, omitting the counterclaims against BKNC and substituting FDIC, as receiver for Beach First, as a third-party defendant. (Bouscarens' Am. Answer & Third-Party Compl., ECF No. 1-2.) In their Amended Answer and Third-Party Complaint, the Bouscarens allege a number of causes of action against FDIC as receiver for Beach First, including negligence, negligent ...


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