Branch Bank and Trust Company v. Technology Solutions Inc et al
Filing
271
ORDER denying 267 (Pro Se) MOTION for Reconsideration of 199 Findings of Fact & Conclusions of Law, to Vacate Judgment, and for Temporary Restraining Order. Signed by Honorable Joseph F. Anderson, Jr. on 11/14/2014.(bshr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Branch Banking and Trust Company,
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Plaintiff,
vs.
Technology Solutions, Inc.; Cathy G.
Lanier; and Randy D. Lanier,
Defendants.
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C/A: 3:13-cv-1318-JFA
ORDER
This mortgage foreclosure action was initiated by Branch Banking & Trust
Company (“BB&T”) against Technology Solutions, and two of its principals, Cathy
G. Lanier and Randy D. Lanier. After a trial on the merits, the Court rejected all of
the defenses advanced by the Defendants, finding them to be, for the most part,
frivolous. The Court ordered the foreclosure and sale of the property. (ECF No.
199). This Court’s decision on the merits was ultimately upheld by the United States
Court of Appeals for the Fourth Circuit.1 Additionally, supplementary proceedings
were conducted by this Court that culminated in an Order holding Defendant Cathy
G. Lanier in contempt for violating this Court’s previous Order to peacefully
surrender possession of the subject premises to the Plaintiff, BB&T, who was the
1
See Branch Banking and Trust Company v. Cathy G. Lanier, et al., ___ Fed. Appx. ___, 2014 WL
5462662, C.A.4 (S.C.), Oct. 29, 2014.
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successful bidder at the foreclosure sale.
Now before the Court is a motion filed by Defendant Randy D. Lanier,
purportedly on behalf of “all named Defendants”2 to reconsider, vacate the judgment,
and reverse the foreclosure sale in this action. The motion also seeks a temporary
restraining order prohibiting the Plaintiff from occupying the premises it purchased
at the foreclosure sale.
After reviewing the submissions of the parties, the Court has determined that
oral argument would not aid in the decisional process and that the motion should be
denied forthwith.
Central to the motion presently before the Court is the contention by the
Defendants that “newly discovered evidence” proves the Defendants’ allegations that
BB&T had removed the subject real estate from the lien of the mortgage during one
of the loan modifications that occurred subsequent to the initial mortgage.
Before delving into the merits of the motion, the Court believes a review of
Defendants’ assertion that this document is “newly discovered,” bears scrutiny,
especially in light of the Defendants’ previous conduct in this litigation.
Defendants point to a loan modification document, with an accompanying
security agreement, executed on February 23, 2005. Defendants initially contended
2
This Court has repeatedly advised the Laniers that, as non-attorneys, they may not represent the corporate
defendant. See S.C. Code Ann. § 40-5-310.
2
that this document was not in the discovery provided by the Plaintiff during the
discovery phase of this case, and that the Defendants only recently learned of its
existence by personally reviewing their own copies of the loan documents provided
by the Plaintiff during the loan process. (ECF No. 267). Defendants contended that
this document was on their computer which, unfortunately, crashed and only recently
were they able to restore the document to their computer and print out a copy. (Id.).
Plaintiff’s counsel responded with a copy of the specific document in question,
which bears Bates numbers in the lower right corner verifying that it was one of a
series of document produced to the Defendants in this action. (ECF No. 269). The
Defendants have not come forth with any explanation as to why the alleged computer
crash could not have been rectified earlier in this case, which commenced on May 15,
2013. Further, and even more troubling to the Court, Defendants’ in their Reply,
admit that the document was in fact produced to them during discovery, but that the
document was “intentionally placed as a needle in a haystack.” (ECF No. 270).
Defendants further assert that the document was intentionally suppressed at trial and
that Plaintiff has “manipulated this proceeding.” (Id.).
Cast in the backdrop of these new allegations is Defendants’ conduct during
the evidentiary hearing, which looms large in this case and bears mention at this
point. During the bench trial, Defendants contended that the mortgage being
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foreclosed upon did not in fact belong to the Plaintiff, BB&T, but instead belonged
to some unknown third party, to whom the mortgage allegedly had been assigned.
Defendants produced a witness who testified that he was aware that the
mortgage had been assigned, and when pressed by this Court to state the basis for his
testimony, he indicated that he had learned in through his subscription to a
Bloomberg financial news subscription service, and that to reveal this information in
court would violate “the copyright laws of the United States.” Accordingly, the
witness provided no basis for his testimony and it was properly rejected by this Court.
Secondly, when the Plaintiff introduced the original Note and Mortgage still
in its possession at the evidentiary hearing, the Defendants— after requesting and
receiving a magnifying glass from this Court—announced that the documents were
not genuine originals, but were instead color copies, thereby lending credence to their
argument that the original note and mortgage had been assigned. At the Defendants’
request, the Court continued the trial for a second day, so as to allow the Defendants
to call a document forensics expert from Spartanburg, South Carolina, to come review
the disputed documents and express an opinion thereon. The expert, who had not
theretofore seen the documents in question, arrived at the courthouse on the second
day, microsope in hand, and, after examining the documents, confidently announced
that they were, in fact, genuine originals.
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Faced with this history and the Defendants’ own admission that the document
was in fact produced by Plaintiff, the Court is loath to give credence to the
Defendants’ argument that the documents now before it are “newly discovered.” To
do so would impugn the integrity of Plaintiff’s counsel who, at all times during this
litigation, has been straightforward with this Court.3 Further, the Court is not inclined
to entertain any suggestion that Plaintiff intentionally withheld or attempted to
suppress the document from the proceedings. Had Defendants thoroughly reviewed
the documents produced by Plaintiff, they would have found the purported “newly
discovered” document, and could have presented it to the Court for consideration.
Defendants’ attempt to cast blame on Plaintiff for their own oversight is unwarranted
and improper.4
3
Defendants’ attempt the impugn the integrity of Plaintiff’s counsel is consistent with other actions taken by
the Defendants in this case. As noted in detail in this Court’s Order of November 10, 2014 (ECF No. 258), Defendants
willfully interfered with the foreclosure process and violated a clear Order of this Court by writing to the United States
Marshal and to the Sheriffs of Lexington and Chester Counties, suggesting that the Plaintiff in this action, BB&T, was
under investigation for “federal mortgage fraud.” The evidentiary hearing that followed this accusation revealed that
in fact, no federal mortgage fraud investigation was ongoing, but that Defendants had purchased a letter from a private
company for $3,500 incorrectly stating that such an investigation was in progress. For this violation of the Court’s Order,
the Court found Cathy Lanier in contempt and sanctioned her appropriately.
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During the course of the litigation, Defendants have impugned the credibility of both the Plaintiff, BB&T, by
falsely stating that it was under a federal fraud investigation, and its attorney, Steve Licata, by falsely suggesting that he
did not provide all discovery requested. The Court has found both of these claims to be meritless. The Defendants have
also impugned the integrity of the Court by suggesting, in their letter to the United States Marshal and Lexington and
Chester County Sheriffs, that this Court was “in collusion” with the Plaintiff. When offered the opportunity at the
evidentiary hearing to present any evidence of collusion, Defendants through counsel, withdrew this allegation.
Defendants are hereby admonished that any future allegations of legal or ethical improprieties will be carefully
scrutinized, and if a repeat offense is found, the Court will not hesitate to impose further sanctions.
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Even if the Court were to address the merits of the motion presently before it,
the Court has little difficulty denying the present motion without an evidentiary
hearing.
The question of loan modification was highly debated at the evidentiary bench
trial. The Defendants contended that some of the loan modifications executed
between the parties somehow deprived the Plaintiff of its ability to foreclose on the
mortgage upon a clear showing of default by the Defendants. However, the “Note
Modification Agreement” produced by Plaintiff as Bates Numbers 17179 through
17128 merely reflects the addition of collateral, rather than the removal of collateral.
(ECF No. 269).
The original Promissory Note in this case was dated December 9, 2004, and
matured and was payable on March 25, 2005. The Note was secured by the
mortgages which are the subject of this litigation and as to which this Court has
ordered foreclosure.
On February 23, 2005, as the March 25, 2005, maturity date approached, a
Note Modificaiton Agreement was executed. That document provided, in part, as
follows: “Borrowers and Bank agree that said Promissory Note be modified only to
the limited extent as is hereafter set forth; that all other terms, conditions, and
covenants of said Promissory Note remain in full force and effect.” (Id.). The Loan
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Modification Agreement then modified the maturity date to extend it for another three
years to February 25, 2008. The loan documents then provided for the addition of a
Security Agreement, dated February 23, 2005, adding more collateral . Significantly,
the portion of the Note Modification Agreement which reads “the collateral hereafter
described shall be and is hereby deleted as security interest for payment of the
aforesaid Promissory Note”, is followed by two lines which are conspicuously blank.
(Id.). The failure to indicate any released property in the blank is clear evidence that
the parties did not, in fact, agree to remove/release the real estate, which since has
been foreclosed in this action, from the mortgage as the Defendants contend.
Moreover, the Note Modification Agreement further states that “except for the
modifications contained herein, [the Promissory Note and other loan documents] shall
remain in full force and effect.” (Id.). The document further provides “unless
otherwise provided herein, it is expressly understood and agreed . . . that any and all
collateral (including but not limited to real property, personal property, fixtures,
inventory, accounts, instruments, general intangibles . . . ) given as security to insure
faithful performance by borrowers . . . shall remain as security for the Promissory
Note as modified hereby.” (Id.).
Thus, the Defendants argument that the Loan Modification Agreement
somehow served to release the subject real estate from the mortgage is clearly
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baseless. As indicated above, the relevant documents specifically provide that all
collateral placed under lien initially remained so throughhout the Note modificaiton
process.
Accordingly, the motion to reconsider and for a temporary restraining order is
denied.
IT IS SO ORDERED.
November 14, 2014
Columbia, South Carolina
Joseph F. Anderson, Jr.
United States District Judge
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