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Quicken Loans Inc. v. Porter

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

January 30, 2019

Quicken Loans Inc., PLAINTIFF,
v.
Adrianne Porter and Lansdowne Homeowners Association Inc., DEFENDANTS.

          I. ORDER GRANTING PLAINTIFF'S AMENDED MOTION FOR SUMMARY JUDGMENT AS TO DEFENDANT ADRIANNE PORTER; II. ORDER GRANTING DEFAULT JUDGMENT AS TO DEFENDANT LANSDOWNE HOMEOWNERS ASSOCIATION INC.; AND III. ORDER AND JUDGMENT OF FORECLOSURE AND SALE AS TO ALL DEFENDANTS; (DEFICIENCY WAIVED)

         This matter comes before the court pursuant to the following: (1) Lis Pendens, Summons and Complaint (ECF No. 1) (“Foreclosure Action”) filed by Quicken Loans Inc. (“Plaintiff”) against Adrianne Porter (“Borrower”) and Lansdowne Homeowners Association Inc. (“HOA, ” and collectively with Borrower, “Defendants”); (2) Plaintiff's Amended Notice of Motion and Amended Motion for Summary Judgment as to Defendant Adrianne Porter only (ECF No. 26), pursuant to Rule 56 of the Federal Rules of Civil Procedure, with Plaintiff's Memorandum in Support thereof (ECF No. 26-1) (“MSJ”); and (3) Plaintiff's Notice of Motion and Motion for Default Judgment as to Defendant Lansdowne Homeowners Association Inc. only (ECF No. 28), pursuant to Rule 55 of the Federal Rules of Civil Procedure (“MDJ”). Based upon a review of the court's file, the Foreclosure Action, Plaintiff's MSJ, Plaintiff's MDJ, and all relevant and applicable statutory law, case law and court Rules, the court hereby finds and concludes as follows:

         FINDINGS OF FACT AS TO FORECLOSURE ACTION, MSJ, AND MDJ

         1. The amount in controversy in this matter, exclusive of interest and costs, exceeds Seventy-Five Thousand ($75, 000.00) Dollars.

         2. This court has jurisdiction in this matter pursuant to 28 U.S.C. §1332 based on Plaintiff's allegations that there is complete diversity of citizenship between it and Defendants. Specifically, Plaintiff is a corporation organized under the laws of Michigan with its principal place of business in Detroit, Michigan. (ECF No. 1 at 1 ¶ 2.) Moreover, Borrower is a citizen and resident of Richland County, South Carolina and HOA is a corporation organized under the laws of South Carolina with its principal place of business in Lexington County, South Carolina. (Id. ¶¶ 3, 4.) Finally, the court is satisfied that the amount in controversy exceeds the sum of Seventy-Five Thousand ($75, 000.00) Dollars, exclusive of interest and costs. (Id. ¶ 5.)

         3. Venue in this District is appropriate under 28 U.S.C. §1339(b)(2) as the property which is the subject of this action is located in this District.

         4. This case is appropriately filed in this Columbia Division of this court as a substantial part of the events or omissions giving rise to the claim occurred in the Columbia Division, and the organization defendant, upon information and belief, does business in the Columbia Division relating to the events or omissions as the Note sued upon was executed in the Columbia Division.

         5. The court has determined that Plaintiff has complied with the Administrative Order of the Supreme Court dated May 2, 2011 (2011-05-02-01) and the Administrative Order of the Supreme Court dated May 22, 2009 (2009-05-22-01).

         6. The Lis Pendens, Summons, and Complaint (and any amendments thereto or joinders thereto) as well as service affidavits for all Defendants have been filed with the Clerk of Court.

         7. Plaintiff filed its Amended Motion for Summary Judgment as to Adrianne Porter only on December 18, 2018. A motion for summary judgment is appropriate only when it is clear there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Shumpert v. Time Insurance Co., 328 S.C. 574, 493 S.E.2d 111 (Ct. App. 1997). In ruling on a motion for summary judgment, the trial court must view the evidence and all inferences which can be reasonably drawn therefrom in the light most favorable to the non-moving party. Id. Under Rule 56(c), the party seeking summary judgment has the initial burden of demonstrating the absence of a genuine issue of material fact. Once the moving party meets its initial burden, the non-moving party may not rest on mere allegations or denials in the pleadings; rather the non-moving party must come forward with specific facts showing there is a genuine issue for trial. Boone v. Sunbelt Newspapers, Inc. 347 S.C. 571, 556 S.E.2d 732 (Ct. App. 2001).

         8. Both Defendants are in default in this case as shown by the Certificates filed herein and by the Clerk's Entry of Default as to HOA issued on November 15, 2017. (ECF Nos. 6, 7, 11.)

         9. Borrower has not filed a response to Plaintiff's MSJ.

         10. HOA has not filed a response to Plaintiff's MDJ.

         11. According to the affidavits and certifications filed herein, any Defendants who are in default have been reviewed for their eligibility under The Servicemembers' Civil Relief Act of 2003 (“SCRA”) and any amendments thereto, and this review does not indicate either of the Defendants are eligible for protections.

         12. Defendants did not raise any credible issues related to Plaintiff's standing to prosecute this action, and Plaintiff is the real party in interest as contemplated by Rule 17(a), FRCP. The court finds that any issues related to Plaintiff's standing or ability to prosecute this action are waived. All allegations in Plaintiff's Complaint are deemed admitted in full.

         13. For value received, Thomas Porter and Borrower made, executed and delivered a Note dated June 6, 2014, to Plaintiff, promising thereby to pay to the order of Plaintiff, the sum of $195, 000.00 with interest at the rate of 4.250% per annum (“Note”). Other terms and conditions are stated in the Note, which is of record herein.

         14. To better secure the payment of the Note, Thomas Porter and Borrower, made, executed and delivered to Mortgage Electronic Registration Systems, Inc., as nominee for Quicken Loans Inc. a Mortgage in writing, dated June 6, 2014, covering real property (“Property”) in Richland County, which is the same as that described in the Complaint (“Mortgage”). The Mortgage was filed on June 9, 2014, and is of record in the Office of the Register of Deeds for Richland County in Book 1950, at Page 2905. The Mortgage evidences and secures the repayment of money advanced by Plaintiff, or on behalf of, Thomas Porter and Borrower.

         15. Thereafter, said Mortgage was assigned to Plaintiff by assignment instrument dated January 19, 2017 and recorded February 7, 2017, in Book 2185 at Page 3480 (“Assignment”).

         16. Subsequently, Thomas Porter a/k/a Thomas C. Porter a/k/a Thomas Christopher Porter died testate on or about August 16, 2016, leaving the subject property to his devisees, namely Adrianne Porter, as shown in Probate Estate Matter Number 2016ES4001386 (“Probate Case”). Thereafter, Adrianne Porter (Borrower) was appointed as Personal Representative of the Estate of Thomas Porter a/k/a Thomas C. Porter a/k/a Thomas Christopher Porter in the Probate Case.

         17. Pursuant to the South Carolina Lis Pendens Statute (S.C. Code Section 15-11-10, et. seq.) (Supp. 2004), counsel for Plaintiff has accomplished a Report on Title whereby Counsel for Plaintiff has, upon information and belief, named all parties who claim or may claim an interest in the mortgaged Property. This court further finds that this Report on Title is a recoverable charge, expense, or cost as provided for in the Mortgage and/or Note contracts, and the amount is found to be reasonable.

         18. This court therefore finds that this Mortgage constitutes a purchase money first lien on the Property.

         19. The court finds that Plaintiff and its counsel have fully complied with all of their obligations as required under the specific terms of the Note and Mortgage being foreclosed as well as all applicable Federal and/or State statutes or regulations, including, but not limited to, the furnishing of any notices, where applicable (e.g. post referral loss mitigation solicitation letter and/or acceleration warning letter, if or where applicable); and moreover and prior to the filing of this judicial proceeding, Defendants had not raised any compliance defenses or objections as to the servicing of any applicable banking or consumer laws by Plaintiff and/or its counsel.

         20. According to the records of Plaintiff and its counsel, neither Plaintiff nor its counsel is aware of any party to this action currently being on active duty or recently discharged. The court finds that counsel for Plaintiff shall be entitled to recover its charges from Plaintiff for this Certification/Report to the court as part of its professional duties in prosecuting this action.

         21. According to the records of Plaintiff and its counsel, neither Plaintiff nor its counsel is aware of any party to this action currently being under the protection of the United States Bankruptcy Court. Moreover, any party to this action who is a discharged borrower to the debt owed to Plaintiff shall not be subject to, and is specifically excluded from, both the calculation and collection of any amounts due and owing to Plaintiff, as required by Rule 71(a) of the South Carolina Rules of Civil Procedure. The court finds that counsel for Plaintiff shall be entitled to recover its charges from Plaintiff for this Certification/Report to the court as part of its professional duties in prosecuting this action, and the court finds such charges to be reasonable.

         22. Payment due on the Note has not been made as provided for in the Note, and Plaintiff has elected to require immediate payment of the entire amount due thereon and has placed the Note and Mortgage in the hands of the attorney herein for collection.

         23. With respect to attorney fees, as contemplated in paragraph 6(E) of Plaintiff's Note and paragraph 22 of Plaintiff's Mortgage, and in view of the potential financial liabilities and likely continuing professional obligations inherent in judicially prosecuting a real property mortgage credit matter, the attendant professional duties and responsibilities, and the size of the mortgage debt and consistent with similar case proceedings before this court, I find that a reasonable attorney's fee in this matter would be $4, 325.00. This award is consistent with the laws of this state in the awarding of attorney fees. I have considered the six (6) factors (none of these factors is controlling in the singular) as follows: (1) the nature, extent and difficulty of the legal service rendered; (2) the time and labor necessarily devoted to the case; (3) the professional standing of counsel; (4) the contingency of compensation; (5) the fee customarily charged in the locality for similar legal services; and (6) the beneficial results obtained. Taylor v. Medenica, 331 S.C. 575, 503 S.E.2d 458 (1998); Baron Data Systems v. Loter, 297 S.C. 382, 377 S.E.2d 296 (S.C. 1989), Jackson v. Speed, 326 S.C. 289, 486 S.E.2d 750 (1997). Pursuant to the language in the Note and Mortgage, this court has specifically reviewed and satisfied itself with all six (6) factors, as well as the disclosed client billing by Plaintiff's counsel considered in awarding reasonable attorneys' fees and costs/expenses/charges in this matter as set forth herein in this paragraph as well as Paragraph 22 of the Mortgage. As itemized below, I find all of the itemized fees and costs/expenses/charges to be reasonable.

         24. The amount due and owing on the Note, with interest at the rate provided in the Note, including attorney's fee and allowable costs and charges allowable under and secured by the Note and Mortgage, is as follows:

(a) Principal due $186, 809.80
(b) Interest Due from 12/01/2016 to 01/30/2019 ...

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