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National Bank of Anguilla (Private Banking and Trust) Ltd. v. Considine

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

August 1, 2017

National Bank of Anguilla (Private Banking and Trust) Ltd., Plaintiff,
Robert Considine and Anne Considine, Defendants.


          PATRICK MICHAEL DUFFY United States District Judge

         This matter is before the Court on Defendants Robert and Anne Considine's motion to dismiss (ECF No. 12). For the reasons set forth herein, the Considines' motion is denied.


         This action arises out of the Considines' acquisition of property on Anguilla. To finance the property, the Considines entered into a loan agreement with Plaintiff National Bank of Anguilla (Private Bank and Trust) Ltd. on March 2, 2007. National Bank alleges that the Considines defaulted on the loan agreement by failing to make the required payments and still owe almost $200, 000.00 under its terms.

         The Considines also entered into an overdraft agreement with National Bank on February 26, 2010. Under the terms of the overdraft agreement, National Bank would continue to honor charges against the Considines' account up to $50, 000.00. National Bank claims that the Considines also defaulted on the overdraft agreement and owe almost $60, 000.00 in principal and interest under the terms of that agreement. Accordingly, National Bank brings the instant action to recover the money the Considines purportedly owe.

         The Considines filed a motion to dismiss on May 1, National Bank responded on May 19, and the Considines replied on May 26. Accordingly, this matter is now ripe for consideration.


         I. Subject Matter Jurisdiction

         First, the Considines argue that this action should be dismissed because the Court lacks subject matter jurisdiction. The Court disagrees and concludes that it has jurisdiction.

         "Federal courts are courts of limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Accordingly, it is presumed that a federal court lacks subject matter jurisdiction, "and the burden of establishing the contrary rests upon the party asserting jurisdiction." Id. (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 182-83 (1936)). District courts have original jurisdiction over civil actions in which the amount in controversy exceeds $75, 000 and the dispute is between "citizens of a State and citizens or subjects of a foreign state." 28 U.S.C. § 1332(a)(2). Section 1332(c)(1) elaborates on a foreign corporation's citizenship, stating that "a corporation shall be deemed to be a citizen of every State and foreign state by which it has been incorporated and of the State or foreign state where it has its principal place of business."

         The Considines are South Carolina citizens. However, the Considines dispute National Bank's assertion that it is a citizen of Anguilla. National Bank states that it is incorporated under the Trust Companies and Offshore Banking Act of Anguilla, with its headquarters "located at the Conrad W. Fleming Corporate Building on St. Mary's Road in the Valley, Anguilla." (National Bank's Resp. Opp'n, Ex. 1, Tacon Decl., ECF No. 17-2, at 2.) Although the parties have raised the question of whether Anguillan law recognizes National Bank's incorporation in Anguilla, the Court need not answer the question to satisfy § 1332's jurisdictional requirements. National Bank has introduced evidence that its principal place of business is in Anguilla and the Considines have not produced any contrary evidence. The Considines are South Carolina citizens, National Bank is a citizen or subject of a foreign state, and the amount in controversy exceeds $75, 000.00. Therefore, the Court finds that there is jurisdiction under § 1332(a)(2).

         II. Statute of Limitations

         Next, the Considines argue that National Bank's claims are barred by South Carolina's statute of limitations. Most breach of contract actions in South Carolina are subject to a three-year statute of limitations. See S.C. Code Ann. § 15-3-530(1). However, section 15-3-530(1) contains an exception for "an action upon a bond or other contract in writing secured by a mortgage of real property." See S.C. Code Ann. §§ 15-3-520(a), 530(1). For such an action, a twenty-year statute of limitations applies. S.C. Code Ann. § 15-3-520(a).

         Without any discussion of the twenty-year statute of limitations, the Considines argue that South Carolina's three-year statute of limitations applies. They claim that because the defaults on the loan agreement and the overdraft agreement occurred more than three years before National Bank commenced this action, those claims are barred. Unsurprisingly, National Bank disagrees and argues that Anguilla's twelve-year statute of limitations applies. National Bank points out that the loan agreement states that "The Laws of Anguilla" govern it. (Compl., Personal Loan Agreement, ECF No. 1-2, at 5.) Additionally, while the overdraft agreement does not contain a choice of law provision, National Bank argues that Anguillan law applies to that agreement as well because that agreement was made and executed in Anguilla. With minimal discussion, National Bank claims that South Carolina's statute of limitations is inapplicable. For the reasons stated below, the Court finds that National Bank's claims are not barred because either Anguilla's ...

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