United States District Court, D. South Carolina, Rock Hill Division
V. HODGES, UNITED STATES MAGISTRATE JUDGE
Loreen Daly, proceeding pro se, filed this case in the Court
of Common Pleas for York County, South Carolina, on February
24, 2015, alleging state law causes of action and a claim
under the Fair Credit Reporting Act, 15 U.S.C. § 1681,
et seq. (“FCRA”). [ECF No. 1-1]. She alleges
SunTrust Mortgage, Inc. (“SunTrust”), failed to
remove negative credit information from her credit report
pursuant to a Settlement Agreement (“Agreement”)
reached in a state foreclosure action (“Foreclosure
Action”) concerning property located at 747 Rock Lake
Glen, Fort Mill, South Carolina (“the Property”).
SunTrust removed the action to this court on May 6, 2015.
[ECF No. 1].
matter comes before the court on SunTrust's motions (1)
to amend its answer to add an additional counterclaim [ECF
No. 51], and (2) to compel more complete responses from
Plaintiff to its first set of interrogatories and requests
for production [ECF No. 54]. Pursuant to 28 U.S.C. §
636(b) and Local Civ. Rule 73.02(B)(2)(e), this case was
referred to the undersigned for all pretrial proceedings.
Motion to Amend
seeks to add a counterclaim to collect on a promissory note
(“the Note”) that was once a subordinate lien
secured by the Property. Plaintiff argues the additional
counterclaim: (1) would be prejudicial because it was
“not contemplated by the original complaint” and
(2) would be futile because Plaintiff was current on the Note
until May 31, 2015, and SunTrust foreclosed on the Property
on July 6, 2015; and (3) is made in bad faith because
SunTrust did not include it in the Foreclosure Action. [ECF
No. 52 at 4-6].
[to amend] shall be freely given when justice so
requires.” Fed.R.Civ.P. 15(a). “A motion to amend
should be denied only when the amendment would be prejudicial
to the opposing party, there has been bad faith on the part
of the moving party, or the amendment would be futile.”
HCMF Corp. v. Allen, 238 F.3d 273, 276 (4th Cir.
2001) (internal quotation marks omitted).
Plaintiff claims she would be prejudiced by SunTrust's
failure to assert the counterclaim earlier in this
proceeding, SunTrust has moved to amend within the time
permitted by the scheduling order. Therefore, SunTrust's
motion is timely, not dilatory. Additionally, Plaintiff
claims the amendment would be futile and was made in bad
faith because she was current on the Note when the complaint
was filed and SunTrust has now foreclosed on the Property
securing the Note. As SunTrust points out, the deficiency
judgment on the first mortgage did not extinguish the
subordinate Note, but changed it to unsecured debt. [ECF No.
53]. Additionally, at the time SunTrust filed the Foreclosure
Action and Plaintiff filed the instant complaint, Plaintiff
was not in arrears on the Note, so SunTrust had not
“intentionally ignored the second mortgage” by
failing to include it in the Foreclosure Action, as Plaintiff
claims. [ECF No. 52 at 5]
Plaintiff has not shown that SunTrust's proposed
counterclaim is prejudicial, made in bad faith, or futile,
SunTrust's motion to amend is granted. Plaintiffs
deadline to answer the counterclaim or otherwise plead is
September 2, 2016.
Motion to Compel
filed a motion to compel on June 30, 2016, after having sent
Plaintiff a letter dated June 3, 2016, requesting
clarification or supplementation of the discovery
deficiencies. Plaintiff filed no response to the motion to
compel. Pursuant to Local Civ. Rule 7.06 (D.S.C.), when no
memorandum is filed in opposition to a motion, the court
decides the motion on the record before the court. After a
review of the motion and its attachments [ECF No. 54], the
court grants the motion to compel. Plaintiff's clarified
and supplemented responses are due to SunTrust by September
Pro se Representation
Plaintiff is proceeding pro se, Plaintiffs discovery
responses indicate that her sister, a Massachusetts attorney,
has been assisting her with this case. [ECF No. 54-2 at 5-6].
The court warns Plaintiff and her sister that an attorney
licensed outside of South Carolina engages in the
unauthorized practice of law when she performs activities
constituting the practice of law in a South Carolina case.
See South Carolina Medical Malpractice Joint Underwriting
Ass'n v. Froelich, 377 S.E.2d 306 (S.C. 1989)
(finding an attorney licensed in Illinois, but not in South
Carolina, had engaged in unauthorized practice of law by
representing South Carolina medical malpractice clients in
court, conferences, and settlement negotiations); see
also Mass. R. Prof. Conduct 5.5(a) (“A lawyer
shall not practice law in a jurisdiction in violation of the
regulation of the legal profession in that jurisdiction, or
assist another in doing so.”). Furthermore, Plaintiff
lists her sister as a witness. Both South Carolina and
Massachusetts have ethical rules prohibiting a lawyer to act
as an advocate and a witness except under limited
circumstances. Further involvement of Plaintiff's sister
in this matter may obligate the court to report her to the
relevant disciplinary authority.
foregoing reasons, the undersigned grants SunTrust's
motions (1) to amend its answer to add an additional
counterclaim [ECF No. 51], and (2) to compel more complete
responses from Plaintiff to its first ...