United States District Court, D. South Carolina, Charleston Division
Rebecca H. Stratford and Francis J. Grant, Plaintiffs,
Altisource Solutions, Inc., Wells Fargo Bank, National Association, et al., Defendants.
ORDER AND OPINION
Richard Mark Gergel United States District Court Judge
matter is before the Court on Defendant Wells Fargo's
motion to dismiss Plaintiff's trespass cause of action.
For the reasons set forth below, the Court denies the motion.
allege they became unable to make required payments on a loan
secured by their residence, located at 500 Congressional
Boulevard, Summerville, South Carolina (the
"Property"), and Wells Fargo initiated foreclosure
proceedings. (Dkt. No. 32 ¶¶ 4-6.) After
foreclosure hearings, the Master in Equity for Dorchester
County entered a judgment of foreclosure and sale, and the
Property was later sold at public auction. (Id.
¶ 7-9.) A foreclosure deed conveying the Property to
Wells Fargo was signed on November 17, 2014 and recorded on
December 2, 2014. (Id. ¶ 10.) The Master in
Equity's judgment also ordered the Dorchester County
Sheriff "to eject and remove from the premises the
occupants of the property sold, together with all personal
property located thereon, and put the successful bidder to
whom the deed of conveyance has been issued or his assigns in
full, quiet and peaceable possession of said premises."
(Dkt. No. 33-1 ¶ 10.) After the foreclosure sale,
Plaintiffs continued to reside at the Property. (Dkt. No. 32
¶ 11.) The Sheriffs office posted a notice on the
Property requiring Plaintiffs to vacate the property by
January 28, 2015 at 9 a.m. (Dkt. No. 41-1.)
allege that, despite the Sheriffs pending ejectment
proceeding, Defendants forced entry into the Property on
January 21, 2015 and removed and destroyed all of
Plaintiffs' personal property from the residence. (Dkt.
No. 32 ¶ 14, 16.) Plaintiffs filed the present action on
October 2, 2017, asserting causes of action for trespass,
conversion, outrage, and unfair trade practices. Defendant
Wells Fargo removed to this Court on November 29, 2017 has
moved to dismiss the cause of action for trespass. (Dkt. Nos.
12(b)(6) of the Federal Rules of Civil Procedure permits the
dismissal of an action if the complaint fails "to state
a claim upon which relief can be granted." Such a motion
tests the legal sufficiency of the complaint and "does
not resolve contests surrounding the facts, the merits of the
claim, or the applicability of defenses. . . . Our inquiry
then is limited to whether the allegations constitute 'a
short and plain statement of the claim showing that the
pleader is entitled to relief" Republican Party of
N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992)
(quotation marks and citation omitted). In a Rule 12(b)(6)
motion, the Court is obligated to "assume the truth of
all facts alleged in the complaint and the existence of any
fact that can be proved, consistent with the complaint's
allegations." E. Shore Mkts., Inc. v. J.D. Assocs.
Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000).
However, while the Court must accept the facts in a light
most favorable to the non-moving party, it "need not
accept as true unwarranted inferences, unreasonable
conclusions, or arguments." Id.
survive a motion to dismiss, the complaint must state
"enough facts to state a claim to relief that is
plausible on its face." Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). Although the
requirement of plausibility does not impose a probability
requirement at this stage, the complaint must show more than
a "sheer possibility that a defendant has acted
unlawfully." Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). A complaint has "facial plausibility"
where the pleading "allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged." Id.
South Carolina law, "[a] trespass is any interference
with one's right to the exclusive, peaceable possession
of his property." Babb v. Lee Cty. Landfill SC,
LLC, 747 S.E.2d 468, 473 (S.C. 2013). "An action
for 'trespass quare clausum fregit' may be based upon
possession only and not necessarily upon legal title."
Gunter's Island Hunting Club of Horry Cty., SC by
Shelley v. Hucks, 317 S.E.2d 470, 472 (S.C. Ct. App.
1984). Wells Fargo argues Plaintiffs had no right to
possession of the Property after November 17, 2014 because
Wells Fargo became sole owner on that date. Thus, according
to Wells Fargo, Plaintiffs cannot state a claim for trespass
to the Property for an entry occurring after that date.
true that a right to possession, not mere possession, is a
required to state a trespass claim. Plaintiffs, however, were
not squatters. They had taken possession of the Property
legally and established their residence there legally. They
had a right to possess their established residence until
surrendering it, or, failing that, until ejected by public
authority acting under color of law. A writ of assistance is
the means by which the residents of a foreclosed property are
ejected and the purchaser placed in possession:
"A writ of assistance is undoubtedly an appropriate
process to issue from a court of equity to place a purchaser
of mortgaged premises under its decree in possession after he
has received the commissioner's or master's deed, as
against parties who are bound by the decree, and who refuse
to surrender possession pursuant to its direction or other
order of the court."
Ex parte Jenkins, 48 S.C. 325, 26 S.E. 686, 689
(1897) (emphasis removed) (quoting Terrell v.
Allison, 88 U.S. 289, 291, 22 L.Ed. 634 (1874)). In this
case, a writ of assistance had issued as part of the Master
in Equity's judgment and the Sheriff was in the process
of enforcing the writ.
of the Property at a foreclosure sale did not vest Wells
Fargo with the right to preempt the Sheriffs enforcement of
the foreclosure order with a self-help ejection by hired
hands. Breaking into someone's home and removing her
belongings is an unlawful act and a breach of the peace. The
legitimate use of force is the monopoly of the state. Justice
allows that in certain exigent circumstances, like
self-defense, persons may legitimately use force on their own
initiative. Beyond those narrow exceptions, a ...