United States District Court, D. South Carolina, Charleston Division
CresCom Bank, successor by merger to Community FirstBank, Plaintiff,
Edward L. Terry; Harris Street, LLC, n/k/a CCT Reserve, LLC; Sugarloaf Marketplace, LLC; and CCT Reserve, LLC, Defendants.
PATRICK MICHAEL DUFFY United States District Judge.
matter is before the Court on Plaintiff CresCom Bank's
motion for supplementary proceedings (ECF No. 102). Seeking
to recover a judgment debt from Defendant Edward L. Terry,
CresCom asks for several forms of relief against Mr. Terry
and his wife, Elaine C. Terry. For the following reasons,
CresCom's motion is granted in part and denied in part.
several years of litigation, CresCom obtained a judgment
against Mr. Terry in the amount of $1, 987, 609.55. To date,
he has not paid CresCom any of that amount.
motion comes after roughly a year of fruitless efforts to
find assets of Mr. Terry that are available for levy. It
began in March 2016, when this Court gave CresCom a writ of
execution covering Mr. Terry's property in South
Carolina. CresCom engaged the United States Marshal's
Service to execute the writ. After three unsuccessful
attempts to serve the writ on Mr. Terry at the Terrys'
house in Fernandina Beach, Florida, a marshal returned the
writ to CresCom unsatisfied.
March 2016, CresCom served Mr. Terry with a set of
post-judgment interrogatories and requests for production.
Several weeks later, he answered some of the interrogatories,
produced documents in response to some of the requests, and
objected to the remainder of CresCom's written discovery.
that time, CresCom also began seeking information and
documents from Mrs. Terry about Mr. Terry's assets.
Initially, in April 2016, CresCom's lawyers issued a
subpoena from this Court commanding Mrs. Terry to produce
documents and then appear for a deposition in Charleston,
South Carolina. Mrs. Terry's attorney objected to the
subpoena and advised that CresCom would need to serve a
Florida-issued subpoena upon Mrs. Terry in
2016, CresCom's attorneys issued another set of
subpoenas-one for Mrs. Terry's deposition and another for
her to produce documents-that, as demanded, originated in the
United States District Court for the Middle District of
Florida. CresCom hired a process server to serve Mrs. Terry
at a house in Englewood, Florida that Mr. Terry had
represented to be their home. As the process server learned,
however, the Terrys had actually sold that house. The process
server tried several times that summer to serve Mrs. Terry at
another of her Fernandina Beach residences, but he was
November 2016, CresCom served Mr. Terry with a deposition
notice, as well as a subpoena instructing him to appear for a
deposition in Charleston and to provide certain information
and documents in advance of the deposition. CresCom's
requests for information and documents closely tracked the
discovery requests CresCom had served on Mr. Terry the
previous March. At the end of December, he responded to the
subpoena's document request by providing some additional
information and documents. He continued, however, to object
to most of the requests.
December 2016, CresCom's counsel issued a third set of
subpoenas to Mrs. Terry, this time instructing her to produce
documents and appear at a deposition in Charleston the
following month. A process server handed the subpoenas to Mr.
Terry at a house in Charleston the Terrys use from time to
time. Mrs. Terry neither complied with nor objected to the
subpoenas. Instead, she made a motion to quash them. The
Court denied the motion without prejudice because Mrs. Terry
filed it without first talking trying to resolve the matter
informally with CresCom. See Local Civ. Rule 7.02
(D.S.C.). Mrs. Terry and CresCom's attorneys then
discussed the subpoenas via email. Mrs. Terry did not renew
January 13, 2017, Mr. Terry appeared in Charleston for his
deposition, which the parties suspended without conclusion. A
week later, CresCom's counsel sent the Terrys'
attorneys a letter renewing CresCom's prior requests for
certain documents relating to the Terrys' assets. Mr.
Terry produced some of the documents requested in that
letter. Mrs. Terry did not produce anything.
documents and testimony Mr. Terry has provided thus far
indicate that he has ownership interests, either directly or
indirectly, in real estate across the Southeast, that he has
participated in several profit-sharing plans over the past
several years, and that Mrs. Terry supports him with assets
titled either in her name or in the name of entities she
owns. Mr. Terry insists, however, that he has no means of
paying CresCom because all his property is either already
encumbered by other judgment creditors or are otherwise
unavailable to CresCom. CresCom believes Mr. Terry
manufactured his purported inability to pay by engaging in
illegitimate asset transfers involving Mrs. Terry, their
children, and a constellation of entities they own. That
belief animates the motion at bar.
filed its motion for supplementary proceedings on February
24, asking the Court to order Mr. and Mrs. Terry to produce
documents, to enjoin Mr. Terry from alienating or damaging
any of his property not exempt from execution, and to provide
other relief in aid of its collection efforts. On March 10,
Mr. and Mrs. Terry filed separate responses in opposition.
After the Court granted a filing extension, CresCom replied
to both of those briefs on March 27. Then, with the
Court's permission, Mr. and Mrs. Terry filed a joint
sur-reply on March 31.
on March 22, CresCom filed a motion seeking a writ of
attachment for Terry's non-exempt property. With
extensions from the Court, the parties' briefing on that
related motion concluded on June 1. On June 5, the Court
denied that motion without prejudice. However, the Court also
found that CresCom had made a prima facie showing
that supplementary proceedings are appropriate. To maintain
the status quo pending further review of CresCom's
supplementary proceedings motion, the Court issued a