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Messex v. Quicken Loans, Inc.

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

July 10, 2018

Travis Messex, Plaintiff,
v.
Quicken Loans, Inc., Defendant.

          ORDER AND OPINION

         Plaintiff Travis Messex filed the above-captioned action against Defendant Quicken Loans, Inc. alleging claims for violation of the South Carolina Attorney Preference Statute (“SCAPS”), SC Code § 37-10-102 (2017), in the context of a mortgage loan closing. T. Messex v. Quicken Loans, Inc., C/A No. 2:15-cv-04773-JMC, ECF No. 1-1 at 9 ¶¶ 8-13 (D.S.C. Nov. 30, 2015).

         This matter is before the court on Plaintiff's Motion to Alter or Amend Judgment pursuant to Rules 52(b) and 59(e) of the Federal Rules of Civil Procedure. (ECF No. 145.) Specifically, Plaintiff seeks to alter or amend the Order entered on February 22, 2018 (ECF No. 143) (the “February Order”), in which the court granted Quicken Loans' Motion for Summary Judgment and denied Plaintiff's Motion for Summary Judgment. (ECF Nos. 79, 82.) Quicken Loans opposes Plaintiff's Motion to Alter or Amend asserting that it should be denied. (ECF No. 146 at 2.) For the reasons set forth below, the court DENIES Plaintiff's Motion to Alter or Amend.

         I. RELEVANT BACKGROUND TO PENDING MOTION

         Quicken Loans “is a nationwide online mortgage lender that provides, among other things, residential mortgage loan refinances.” Boone v. Quicken Loans, Inc., 803 S.E.2d 707, 709 (S.C. 2017). “Under the Quicken Loans refinance procedure, the borrowers have already purchased the property and are simply seeking a new mortgage loan (presumably with more favorable terms) to replace the existing loan.” Id.

         In or around November 28, 2012, Teresa Messex, Plaintiff's wife, provided information to Quicken Loans for purposes of completing a loan application to refinance the mortgage on the Messexes' residence located at 136 Messex Lane, Saint George, South Carolina.[1] (ECF Nos. 79-3 at 4, 79-1 at 23:10-27:25 & ECF No. 79-5 at 3 ¶ 5.) At all times relevant to this transaction, Teresa Messex had Plaintiff's permission to conduct his business, which authorization was conveyed by Plaintiff to Quicken Loans. (ECF No. 79-2 at 6:15-24 & 7:11-16; ECF No. 79-1 at 25:17-26:8.) As a result of the information provided by Teresa Messex, Defendant generated loan application documents that were made available to Plaintiff and his wife to review via Quicken Loans' internet web portal. (ECF No. 79-5 at 3 ¶ 5.) In addition to the loan application package, Quicken Loans included an Attorney/Insurance Preference Checklist (the “AIPC”). (Id.; see also ECF No. 1-1 at 9 ¶ 8.) Based on the information provided by Teresa Messex, the AIPC was prepopulated with the following relevant information (in bold):

         1. I (We) have been informed by the lender that I (we) have a right to select legal counsel to represent me(us) in all matters of this transaction relating to the closing of this loan.

(a) I select I/We will not use the services of legal counsel.
(b) Having been informed of this right, and having no preference, I asked for assistance from the lender and was referred to a list of acceptable attorneys. From that list I select

         (ECF No. 1-1 at 13.)

         On November 29, 2012, Teresa Messex, with Plaintiff's permission/authorization, electronically signed the loan application documents and the AIPC and transmitted them to Quicken Loans via its internet web portal. (Id.; see also ECF Nos. 79-1 at 25:2-8 & 27:18-24; ECF No. 79-2 at 6:15-7:16; ECF No. 79-5 at 3 ¶ 6.) On January 10, 2013, Teresa Messex had a telephone conversation with a Quicken Loans' representative to discuss the details of the loan closing, including who would be in attendance. (ECF No. 79-5 at 3 ¶ 7.) On January 22, 2013, Plaintiff and his wife signed a disclosure form agreeing to be represented by Scotty Sheriff of the law firm McDonnell & Associates, P.A. at the loan closing and completed their loan closing. (ECF No. 79-8 at 3 ¶ 4-4 ¶ 8 & 6-8.)

         On October 19, 2015, Plaintiff filed a Complaint against Quicken Loans in the Court of Common Pleas for Dorchester County, South Carolina alleging violation of the SCAPS.[2] (ECF No. 1-1 at 9 ¶ 12.) After Quicken Loans removed the case to this court (ECF No. 1), the parties engaged in and completed discovery on March 1, 2017. (ECF No. 49.) Quicken Loans then moved for summary judgment on March 31, 2017. (ECF No. 79.) On that same day, Plaintiff filed his Cross-Motion for Summary Judgment. (ECF No. 82.) After the court entered the February Order, Plaintiff moved to alter or amend judgment on March 22, 2018. (ECF No. 145.)

         II. JURISDICTION

         The court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332(a)(1) based on Quicken Loans' allegations that there is complete diversity of citizenship between Plaintiff and Quicken Loans, and the amount in controversy herein exceeds the sum of Seventy-Five Thousand ($75, 000.00) Dollars, exclusive of interest and costs. (ECF No. 1 at 2.) Quicken Loans is a corporation organized under the laws of Michigan with its principal place of business in Detroit, Michigan. (ECF No. 1-2 at 3 ¶ 5.) Plaintiff is a citizen and resident of Dorchester County, South Carolina. (ECF No. 1-1 at 8 ¶ 1.) Moreover, the court is satisfied that the amount in controversy exceeds $75, 000.00 in accordance with Defendant's representation. (ECF No. 1 at 3-7.)

         III. LEGAL STANDARD AND ANALYSIS

         In the February Order, the court made the following observations in granting Quicken Loans' Motion for Summary Judgment:

The SCAPS requires the lender to ascertain the preference of the borrower as to legal counsel. “‘[A]scertain' means ‘to render certain or definite . . . to clear of doubt or obscurity . . . to find out by investigation.'” Parker v. Cty. of Oxford, 224 F.Supp.2d 292, 295 (D. Me. 2002) (quoting Black's Law Dictionary 114 (6th ed. 1990)); see also Morgan v. Huntington Ingalls, Inc., 879 F.3d 602, 609 (5th Cir. 2018) (“‘Ascertain' means ‘to make certain, exact, or precise' or ‘to find out or learn with certainty. . .' [t]hus, ‘ascertain' requires ‘a greater level of certainty . . . .'”) (citation omitted). In considering the requirements of the SCAPS, the court observes that the parties have not presented any dispute of fact regarding Quicken Loan's attorney preference procedure in this matter. Therefore, the matter is ripe for summary judgment.
Upon review, the court is persuaded that Quicken Loans did ascertain Plaintiff's attorney preference in compliance with the SCAPS. First, Teresa Messex had permission from Plaintiff[3] to convey to an agent of Quicken Loans that Plaintiff would not use the services of preferred legal counsel to represent him in this transaction. After receiving Teresa Messex's response that Plaintiff did not have counsel of preference, Quicken Loans (1) sent Plaintiff an AIPC that advised him that he has “a right to select legal counsel to represent me(us) in all matters of this transaction relating to the closing of the loan” and (2) prepopulated the AIPC with the statement “I/We will not use the services of legal counsel.” (ECF No. 1-1 at 13.) Upon receipt of the AIPC, Teresa Messex reviewed it, discussed it with Plaintiff, [4] electronically signed it[5] and electronically transmitted the document back to Quicken Loans.[6] There is no evidence before the court that Plaintiff had any questions about the content of the AIPC. Cf. Floyd v. Nationwide Mut. Ins. Co., 626 S.E.2d 6, 12 (S.C. 2005) (“[A] competent person usually is presumed to have knowledge and understanding of a document he signs, absent evidence his signature was obtained by misrepresentation, fraud, forgery, or duress.”) (citations omitted). Thereafter, Plaintiff had approximately seven weeks, from November 29, 2012, to before the loan closing on January 22, 2013, to express an attorney preference to Quicken Loans, which he did not do. Moreover, Plaintiff has not voiced any displeasure with counsel chosen by Quicken Loans (Scotty Sheriff).[7]
Based on the foregoing, the court predicts that the South Carolina Supreme Court would conclude that Quicken Loans did “ascertain . . . the preference of the borrower as to [] legal counsel . . . relating to the [instant] closing . . .” in compliance with the SCAPS. Accordingly, the court GRANTS Quicken Loans' Motion ...

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