United States District Court, D. South Carolina, Anderson/Greenwood Division
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
JACQUELYN D. AUSTIN, Magistrate Judge.
This matter is before the Court on a motion for summary judgment filed by Defendant [Doc. 46] and a motion for summary judgment on Defendant's counterclaim filed by Plaintiff [Doc. 50]. Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(e), D.S.C., this magistrate judge is authorized to review all pre-trial matters in cases involving litigation by individuals proceeding pro se and to submit findings and recommendations to the District Court.
Plaintiff, an African-American proceeding pro se, filed this case on August 28, 2013, generally alleging Defendant refused to loan Plaintiff money because of Plaintiff's race. [Doc. 1.] Defendant filed an Answer and Counterclaim for destruction of property on October 16, 2013. [Doc. 20.] On June 16, 2014, Defendant filed a motion for summary judgment. [Doc. 46.] On June 17, 2014, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Plaintiff was advised to respond to the motion and of the possible consequences if he failed to adequately respond. [Doc. 47.] Plaintiff filed a response in opposition on July 7, 2014 [Doc. 49], and Defendant filed a reply on July 16, 2014 [Doc. 52].
Plaintiff filed a motion for summary judgment on Defendant's counterclaim on July 7, 2014. [Doc. 50.] Defendant filed a response in opposition on July 24, 2014 [Doc. 62], and Plaintiff filed a reply on August 11, 2014 [Doc. 68]. Accordingly, the motions are ripe for review.
On April 3, 2006, Concrete Jungle, LLC ("Concrete Jungle"), a South Carolina limited liability company, entered into a Bond for Title with Wealth Builders, Inc. ("Wealth Builders"), a South Carolina corporation. [Doc. 46-3.] Plaintiff signed the Bond for Title as the Managing Member and President of Concrete Jungle. [ Id. at 6.] Pursuant to the Bond for Title, Concrete Jungle purchased property located at 1810 Laurens Road, Greenville, South Carolina ("the 1810 Property"), from Wealth Builders. [Doc. 46-3.] Wealth Builders financed Concrete Jungle's purchase of the 1810 Property. [Doc. 46-22 at 4:19-5:3.] At the time Concrete Jungle entered into the Bond for Title, Plaintiff knew Defendant had a mortgage on the 1810 Property. [ Id. at 6:19-7:2.] At the time of purchase, Plaintiff operated his clothing business out of the 1810 Property. [ Id. at 3:8-12.]
On May 3, 2011, Concrete Jungle assigned all of its rights under the Bond for Title to Citi State, LLC ("Citi State"), a limited liability company of which Plaintiff is the sole member. [Docs. 46-4; 46-22 at 9:19-10:1.] Plaintiff signed the assignment as managing member of both Concrete Jungle and Citi State. [Docs. 46-4; 46-22 at 10:2-7.]
On August 31, 2012, Defendant filed a foreclosure action after Wealth Builders failed to make payments on its loan on the Properties. [Doc. 46-5 Findings of Fact ¶¶ 1, 10.] Both Concrete Jungle and Citi State were named as defendants in the foreclosure action, but neither filed a response to the foreclosure complaint. [ Id. ¶ 3.] Plaintiff appeared at the foreclosure hearing on January 17, 2013 and was given an opportunity to argue before the Master in Equity. [Doc. 46-22 at 17:21-18:14.] After the hearing, the Master in Equity entered an order, directing that the Properties be sold at a foreclosure sale, free and clear of any interest of Concrete Jungle and Citi State. [Doc. 46-5 Conclusions of Law ¶¶ 8, 12.] Plaintiff subsequently attended the foreclosure sale on March 4, 2013 and knew Defendant purchased the Properties. [Doc. 46-22 at 18:15-22.]
On March 7, 2013, Susan Jolly ("Jolly"), Defendant's Senior Vice President, wrote to Plaintiff, advising him that Defendant was now the owner of the 1810 Property and that Plaintiff could rent the 1810 Property on a month-to-month basis for $2, 500 a month. [Doc. 46-10.] Jolly's letter also stated that if Defendant was not in receipt of the March 2013 rent payment by March 14, 2013, Plaintiff would have thirty days to vacate the premises. [ Id. ] Plaintiff did not make any payment to Defendant after receiving the letter. [Doc. 46-22 at 23:1-4.]
On or about March 9, 2013, Plaintiff visited Jolly in person to discuss purchasing the Properties. [ Id. at 27:4-23.] During that meeting, Jolly told Plaintiff that Defendant would sell the Properties to Plaintiff or Citi State for $350, 000. [ Id. at 28:2-8.] Jolly further informed Plaintiff that Defendant would consider making a loan to Citi State to purchase the Properties and that, before it could make that loan, Defendant would have to approve Plaintiff's and Citi State's credit; therefore, Plaintiff would have to fill out a credit application, submit three years of personal and business tax returns, provide personal and business financial statements and bank statements, and pay a 25% down payment. [ Id. at 28:9-29:16.] Plaintiff asserts that he spoke to Roger Anthony ("Anthony"), Defendant's President, after speaking with Jolly. [Doc. 49 at 3.] According to Plaintiff, Anthony told Plaintiff that he was tired of dealing with Plaintiff's kind and, when Plaintiff asked Anthony if he meant because Plaintiff was black, Anthony got really angry and said he would not help Plaintiff anymore. [ Id. ]
On March 13, 2013, Jolly sent the following electronic mail message to Plaintiff:
[Plaintiff], per our conversation on 3/13/2013, [Defendant] agrees to s[ell] you the properties located 1804, 1806 and 1810 Laurens Road for $350, 000. We will not list the properties with a realtor or entertain their offers for ten (10) days from today's date (3/13/2013) to allow you time to provide [Defendant] with adequate information for [Defendant] to make a determination concerning financing on the above-referenced property. This financial information would include but is not limited to three (3) years of personal and business tax returns, personal and business financial statements, bank statements or other statements of liquidity showing the ability to pay a minimum of $70, 000. down payment. During this ten (10) day term, you may also provide [Defendant] with an acceptable commitment letter from another lender to finance this project.
[Docs. 46-11; 46-12 ¶ 1.] Plaintiff did not apply for a loan with Defendant; instead, Plaintiff sent an electronic mail message to Jolly on March 25, 2013, stating,
Susan Jolly thanks for the time to find a lender to finance the properties 1804 1806 1810 Laurens road Greenville S.C. 29607 I have contacted a lender who is willing to finance the loan. I will be in contact with you as ...