McLawhorn v. Ocwen Loan Servicing LLC et al
ORDER: The motion for summary judgment [ECF No. 59 ] filed by Defendants, Altisource Residential Corporation and Ocwen Loan Servicing, LLC is GRANTED in part and DENIED in part. The motion for summary judgment [ECF No. 60 ] filed by Defendant Altisource Residential Corporation is DENIED. Signed by the Honorable R. Bryan Harwell on 2/15/2017. (hcic, )
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Ocwen Loan Servicing, LLC; and
Altisource Residential Corporation, )
Civil Action No.: 4:14-cv-02745-RBH
This matter is before the Court on motions for summary judgment filed by Defendants,
Ocwen Loan Servicing, LLC and Altisource Residential Corporation [ECF Nos. 59 & 60]. For the
reasons stated below, the Court grants in part and denies in part Ocwen Loan Servicing, LLC and
Altisource Residential Corporation’s joint motion for summary judgment [ECF No. 59] and denies
Altisource Residential Corporation’s motion for summary judgment [ECF No. 60].1
This case was removed to this Court from the Horry County Court of Common Pleas on July
7, 2014, on the basis of diversity jurisdiction, 28 U.S.C. § 1332. Plaintiff, Charles McLawhorn,
alleged claims against Defendant Ocwen Loan Servicing, LLC ("Ocwen") and Defendant Altisource
Residential Corporation ("Altisource Residential") for: 1) trespass; 2) violation of S.C. Code Ann. §
16-17-735; 3) negligence; and 4) violation of the South Carolina Unfair Trade Practices Act, S.C.
Code Ann. § 39-5-10, et seq.
Plaintiff is the owner of a parcel of real property located at 3405 Burris Street, North
Under Local Civil Rule 7.08 (D.S.C.), “hearings on motions may be ordered by the Court in its
discretion. Unless so ordered, motions may be determined without a hearing.” Upon review of the briefs,
the Court finds that a hearing is not necessary.
Myrtle Beach, South Carolina ("McLawhorn Property"). On or about August 31, 1999, Dorothea
and James Estes executed a mortgage on 3507 Burris Street, North Myrtle Beach, South Carolina
("Estes Property"). Plaintiff has never held an ownership interest or been a party to any loan
agreement, guaranty, or other agreement related to the Estes Property or Estes Mortgage and
Dorothea and James Estes have never held an ownership interest in the McLawhorn Property. The
McLawhorn Property was not encumbered by any mortgage at any time relevant to the complaint.
Plaintiff alleges Ocwen entered into a long-term service agreement with Altisource
Residential wherein Ocwen serviced mortgage loans held by Altisource Residential. Plaintiff
alleges Ocwen purchased and/or serviced the Estes Mortgage. Plaintiff alleges that a title search
obtained by Ocwen revealed that the Estes Mortgage was never recorded. Plaintiff further alleges
Altisource Residential purchased the Estes Mortgage from Ocwen and/or performed asset
management services on behalf of Ocwen with respect to the Estes Mortgage.
Following Altisource Residential's alleged purchase of the Estes Mortgage, Plaintiff
contends that Defendants, on one or more occasions, forced entry into the McLawhorn Property by
breaking through the front door. Plaintiff alleges Defendants and/or their agents displayed notices
and/or instruments throughout the McLawhorn Property, turned off the power supply, turned off the
water supply, drained hot water tanks, maliciously damaged the front door of Plaintiff's home,
changed the locks, and placed a lock box on Plaintiff's front door. Plaintiff alleges Defendants
broke into Plaintiff's home even though they had knowledge that the McLawhorn Property was not
encumbered by any mortgage, that the McLawhorn Property was never owned by the Estes family,
that the Estes Mortgage was never recorded, and that the alleged forced entry was in violation of
South Carolina's laws and regulations. Plaintiff alleges an employee/agent of Altisource Residential
claimed that Ocwen hired Altisource Residential to perform work on the McLawhorn Property.
Defendants respond that a mistake in the loan servicing documents led them to believe that
the Estes mortgage, which went into foreclosure, was connected with 3405 Burris Street
(McLawhorn Property) instead of 3507 Burris Street (Estes Property) and that they mistakenly
entered the Plaintiff’s property at 3405 Burris Street to winterize it thinking that it was the Estes
On July 1, 2016, Ocwen and Altisource Residential filed a joint motion for summary
judgment [ECF No. 59] arguing that Defendants were entitled to summary judgment to the extent
Plaintiff sought more than $200.00 in damages on his claims for trespass and negligence.
Defendants also argue that they are entitled to summary judgment on Plaintiff’s claims under S.C.
Code Ann. § 16-17-735 (sham legal process) and the S.C. Unfair Trade Practices Act. Altisource
Residential also filed a separate motion for summary judgment [ECF No. 60] arguing that Plaintiff
sued the wrong defendant entity and that Altisource Residential is entitled to summary judgment as
there is no genuine issue of material fact regarding its lack of involvement in this matter.
Summary Judgment Standard
“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a) (2010). “A party asserting that a fact cannot be or is genuinely disputed must support
the assertion by: (A) citing to particular parts of materials in the record . . .; or (B) showing that the
materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1).
When no genuine issue of any material fact exists, summary judgment is appropriate. See Shealy v.
Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). The facts and inferences to be drawn from the
evidence must be viewed in the light most favorable to the non-moving party. Id. However, "the
mere existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is that there be no genuine issue
of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
"Once the moving party has met [its] burden, the nonmoving party must come forward with
some evidence beyond the mere allegations contained in the pleadings to show that there is a
genuine issue for trial." Baber v. Hospital Corp. of Am., 977 F.2d 872, 874-75 (4th Cir. 1992). The
nonmoving party may not rely on beliefs, conjecture, unsupported speculation, or conclusory
allegations to defeat a motion for summary judgment. See Baber, 977 F.2d at 875. Rather, the
nonmoving party is required to submit evidence of specific facts by way of affidavits, depositions,
interrogatories, or admissions to demonstrate the existence of a genuine and material factual issue
for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Altisource Residential’s Motion for Summary Judgment [ECF No. 60]
On July 1, 2016, Altisource Residential filed a motion for summary judgment arguing that
Plaintiff named the wrong entity as defendant and that Altisource Residential had no connection to
any of the allegations in Plaintiff’s complaint. Altisource Residential maintains that Plaintiff should
have named Altisource Solutions as defendant. On October 8, 2015, Altisource Residential filed
Supplemental Answers to Local Rule 26.01 interrogatories, which stated:
Altisource Residential Corporation is improperly identified and is
not a proper party to this litigation. Defendant separately informed
Plaintiff that Altisource Residential Corporation is an improper
party and has no documents or information regarding the claims set
forth in the Complaint. In addition, Defendant informed
Plaintiff that it believes Altisource Solutions, Inc. is the party
Plaintiff intended to sue, and that counsel will accept service of an
amended summons and pleading reflecting the correct
[Supplemental Rule 26.01 Answers, ECF No. 32]. As indicated in Altisource Residential’s
Supplemental Answers, counsel for Altisource Residential was willing to consent to the out-of-time
filing of an amended complaint reflecting Altisource Solutions as the proper party and accept
service of the amended complaint on behalf of Altisource Solutions.
In support of its contention, Altisource Residential submitted the affidavit of Stephen Gray,
general counsel and secretary for Altisource Residential, which stated that: 1) Altisource Residential
has never acquired or had an ownership interest in either the Estes Property or the McLawhorn
Property; 2) Altisource Residential is not engaged in the provision of asset management or property
preservation and inspection services, and has not performed any such services with respect to the
McLawhorn or Estes Property; 3) Altisource Residential did not trespass or enter upon the
McLawhorn or Estes Property or contract with any party to do so; 4) Altisource Residential did not
post the notice attached as Exhibit A2 to Plaintiff’s Complaint; 5) Altisource Residential has no
corporate relationship with any entity that engaged in the activities alleged in Plaintiff’s Complaint;
6) Altisource Residential has no knowledge regarding the activities or conduct alleged in Plaintiff’s
Complaint; and 7) Altisource Residential and its corporate representatives cannot provide any
information relevant to Plaintiff’s claims or defenses. [Altisource Residential Affidavit, ECF No.
Altisource Residential also points to Katherine Ortwerth’s deposition testimony and affidavit
Exhibit A to Plaintiff’s Complaint indicates the notice was left by or on behalf of “Altisource,” but
does not specify whether it was left by Altisource Residential or Altisource Solutions.
from prior litigation, which indicates that the Estes mortgage was owned by Freddie Mac. [ECF
Nos. 60-6 and 60-7]. Ocwen’s Rule 30(b)(6) witness, Nicole Gostebski, testified in this case that
Altisource Residential was not involved or associated with the properties involved in this case, i.e.
the Estes Property or McLawhorn Property, that Freddie Mac owns the loan, and that Ocwen
contracted with Altisource Solutions to perform property preservation work, not Altisource
Residential. [ECF No. 60-8 at 3-7]. Additionally, documents produced by Ocwen also indicate that
the Estes mortgage is owned by Freddie Mac. [ECF No. 60-12].
Plaintiff, relying on Altisource Residential’s public and corporate filings, argues that a
question of fact exists as to whether Altisource Residential engaged in the conduct alleged in the
Complaint. Plaintiff points to the alleged close/intertwined relationship between Ocwen and
Altisource Residential. Plaintiff also argues that the affidavits and deposition testimony submitted
by Altisource Residential do not dispute the Complaint’s allegations.
There is considerable debate about which Altisource entity entered Plaintiff’s property. To
be sure, there are multiple business entities that have some business relationship with one another
that bear the name “Altisource,” such as Altisource Residential Corporation, Altisource Asset
Management Corporation, Altisource Residential, L.P., Altisource Portfolio Solutions, S.A.,
Altisource Residential GP, LLC, etc. The S.E.C. filing, [ECF No. 66-5, p. 21], explains through a
diagram a business relationship between Ocwen, Altisource Residential Corporation, and Altisource
Portfolio Solutions, S.A. That same document indicates that Altisource Residential was spun off
from Altisource Solutions. The notices posted at the McLawhorn property simply indicate
Altisource. See [ECF No. 1-1, p. 16]. Viewing the evidence in the light most favorable to the
Plaintiff, there is a genuine issue of material fact as to which Altisource entity entered Plaintiff’s
property. Accordingly, the Court finds it prudent to deny Altisource Residential’s motion for
summary judgment. Of course, Altisource Residential may raise this matter again at the directed
verdict stage of the case.
Ocwen and Altisource Residential’s Joint Motion for Summary Judgment [ECF No.
Defendants argue that, as to the trespass claim, Plaintiff’s claim fails as a matter of law to
the extent it seeks damages in excess of $200.00, which was the cost to Plaintiff to repair/change the
locks. Specifically, Defendants, relying on Babb v. Lee County Landfill SC, LLC, 747 S.E.2d 468,
475 (S.C. 2013), argue Plaintiff cannot recover damages for inability to peacefully occupy the
property or discomfort and annoyance because lost rental value includes the annoyance and
discomfort experienced as the result of a temporary trespass or nuisance. Defendants further argue
that Plaintiff’s trespass claim should by characterized as a temporary trespass claim because there
are no facts to support permanent injury to the property or resulting decrease in property value.
Defendants argue that under Babb, Plaintiff’s sole measure of damages for a temporary trespass
claim is lost rental value. Accordingly, Defendants argue Plaintiff cannot recover damages for
diminution of fair market value but instead is limited to lost rental value.
Plaintiff responds that Defendants permanently trespassed when they took possession of
Plaintiff’s property, and permanently changed the way Plaintiff and his family used the property.
Plaintiff argues the property is worth nothing now because the value of the property lies in
Plaintiff’s ability to use the property and keep strangers from entering his home. Plaintiff claims
that he is no longer able to keep personal belongings in his home, store anything of value in his
home, store any food items, or secure his home to prevent future forcible entries and break-ins by
the Defendants. Accordingly, Plaintiff argues that there is a question of fact as to whether his
damages should be categorized as permanent or temporary.
Defendants reply that under Plaintiff’s theory, every trespass that ever occurs would be
permanent in nature simply due to the fact that the property owner believes the trespass could
possibly occur again, regardless of the actual impact on the property. Defendants argue Plaintiff is
attempting to blur the lines between personal injury damages and damages to property interests.
Damages recoverable for trespass or nuisance are strictly limited to damages to one’s
property interests. Babb, 747 S.E.2d at 474. The general rule in South Carolina is that in the case of
an injury or damage of a permanent nature to real property, the proper measure of damages is the
diminution of the market value by reason of that injury. Yadkin Brick Co., Inc. v. Materials
Recovery Co., 529 S.E.2d 764, 767 (S.C. Ct. App. 2000); Ravan v. Greenville County, 434 S.E.2d
296, 307 (S.C. Ct. App. 1993) (“The measure of damages for permanent injury to real property by
pollution, whether by nuisance, trespass, negligence, or inverse condemnation is the diminution in
the market value of the property”). On the other hand, where the damages are for a temporary harm
or nonpermanent injury to real property, the measure of damages is limited to the lost rental value of
the property. Gray v. Southern Facilities, Inc., 183 S.E.2d 438, 443 (S.C. 1971). In Babb, the South
Carolina Supreme Court explicitly extended the holding in Gray to cover trespass and nuisance
claims and held that “the lost rental value of property is the sole measure of temporary trespass and
nuisance damages.” Babb, 747 S.E.2d at 476. Further, “lost rental value includes the annoyance and
discomfort experienced as a result of a temporary trespass or nuisance.” Id. at 475. Babb also held
that “damages for permanent trespass or nuisance in South Carolina are limited to the full market
value of the property.” Id. at 480.
Courts typically allow a property owner to testify as to the value of his own property and any
damage thereto indulging the common-law presumption that a property owner is competent to
testify regarding the value of his own property. See Christopher Phelps & Assocs., LLC v.
Galloway, 492 F.3d 532, 542 (4th Cir. 2007); Seaboard Coast Line R.R. v. Harrelson, 202 S.E.2d 4,
5 (S.C. 1974) (stating “a landowner, who is familiar with his property and its value, is allowed to
give his estimate as to the value of the land and damages thereto”). Plaintiff is competent to offer
lay opinion testimony regarding the alleged damage and the value of his property following the
alleged trespass. Here, Plaintiff has testified that his property cannot be restored and is worth
nothing following the alleged trespass. The credibility of this position and the weight of this
evidence can certainly be challenged by Defendants at the trial of this case before a jury.
Defendants’ arguments that Plaintiff’s damages do not exceed $200.00 are persuasive, but those
arguments are more properly presented to a jury and should be directed to the weight of Plaintiff’s
opinion concerning the extent of his damages. It is for the jury to assess the value and credibility of
Plaintiff’s opinion with regard to the extent of his damages. See Harrelson, 202 S.E.2d at 5.
Likewise, it is for the jury to determine whether any alleged injury to Plaintiff’s property is of a
permanent nature or temporary nature. Viewing the evidence in the light most favorable to the
Plaintiff, there is a genuine dispute as to the nature and extent of the damage to Plaintiff’s property
as a result of the alleged trespass. Defendants’ motion for summary judgment is denied with respect
to Plaintiff’s claim for trespass.3
Defendants did not move for summary judgment with respect to Plaintiff’s claim for punitive
Sham Legal Process
Defendants also move for summary judgment as to Plaintiff’s claim that Defendants falsely
asserted authority in connection with a sham legal process in violation of S.C. Code Ann. § 16-17735. Section 16-17-735 provides that “[i]t is unlawful for a person falsely to assert authority of state
law in connection with a sham legal process.” S.C. Code Ann. § 16-17-735(B). Sham legal process
is defined as:
the issuance, display, delivery, distribution, reliance on as lawful
authority, or other use of an instrument that is not lawfully issued,
whether or not the instrument is produced for inspection or actually
exists, which purports to:
(a) be a summons, subpoena, judgment, lien, arrest warrant, search
warrant, or other order of a court of this State, a law enforcement
officer, or a legislative, executive, or administrative agency
established by state law;
(b) assert jurisdiction or authority over or determine or adjudicate
the legal or equitable status, rights, duties, powers, or privileges of
a person or property; or
(c) require or authorize the search, seizure, indictment, arrest, trial,
or sentencing of a person or property.
S.C. Code Ann. § 16-17-735(E)(3). Defendants argue that Plaintiff has failed to present any
evidence that Defendants falsely asserted authority of state law in connection with a sham legal
process. Defendants contend that Plaintiff has not produced any instrument or document that was
used by the Defendants to carry out a sham legal process.
In response, Plaintiff argues that Defendants posted foreclosure notices at his property and
sent a letter that included a boilerplate statement that the “letter is from a debt collector attempting
to collect a debt, and any information obtained will be used for that purpose.” Plaintiff, therefore,
argues that he has presented sufficient evidence of a sham legal process to survive summary
Plaintiff has offered no authority for the proposition that a foreclosure notice that is properly
issued but mistakenly posted at the wrong home constitutes a false assertion of state law in
connection with a sham legal process under S.C. Code Ann. § 16-17-735. Additionally, Plaintiff
provides no authority, and the Court has found none in its own research, to suggest that a boilerplate
statement that Ocwen is a debt collector attempting to collect a debt is a false assertion of state law.
Plaintiff has failed to offer sufficient evidence that Defendants falsely asserted authority of state law
in connection with any unlawfully issued instrument. Viewing the evidence in the light most
favorable to the Plaintiff, Defendants are entitled to summary judgment on Plaintiff’s claim of a
sham legal process.
Defendants argue they are entitled to summary judgment on Plaintiff’s negligence claim to
the extent he seeks damages in excess of the $200.00 actual cost to repair his home. Specifically,
Defendants argue Plaintiff is foreclosed from seeking damages for diminution in property value
because there is insufficient evidence of a permanent injury to the property. Second, Defendants
argue that any damages claim for emotional or mental suffering is barred because Plaintiff has failed
to show a physical manifestation of emotional distress.
Plaintiff responds that diminution of property value is the proper measure of damages in this
case because his home was permanently damaged and is now worth nothing in that he can no longer
use the property as he once did and he is unable to keep strangers from entering his home. Plaintiff
states that $171,900 (alleged fair market value of the property) represents his actual damages.
Citing Landford v. West Oakwood Cemetery Addition, Inc., 75 S.E.2d 865, 867 (S.C. 1953),
Plaintiff also argues that if his claim that Defendants’ acts were willful and wanton is proven, then
mental suffering is an element of actual damages.
The basic measure of actual or compensatory damages in a negligence case “is the amount
needed to compensate the plaintiff for the losses proximately caused by the defendant’s wrong so
that the plaintiff will be in the same position he would have been in if there had been no wrongful
injury.” Graham v. Town of Latta, South Carolina, 789 S.E.2d 71, 83 (S.C. Ct. App. 2016). In
Graham v. Town of Latta, the South Carolina Court of Appeals approved the following jury charge
in a negligence action for damage to real property:
Where real estate has been damaged[,] the measure of damages is
the difference between the value of the entire premises before and
after the injury . . .If repairing the building would put it in as good
a condition as before the damage[,] then the measure of damages
would be the cost of repair plus any amount by which the building
has been decreased due to the damages.
Graham, 789 S.E.2d at 83. Accordingly, as to Plaintiff’s negligence cause of action, pursuant to the
jury instruction endorsed by the South Carolina Court of Appeals in Graham, Plaintiff can
potentially recover the difference between the value of the entire premises before and after the injury
and if repairing the building would restore the condition of the property, then Plaintiff could
potentially recover the cost of repairs plus any amount by which the property value has been
decreased due to the damages. As stated above, Plaintiff may testify as to the value of his real
property and any damage sustained to it. Harrelson, 202 S.E.2d at 5. It is not this Court’s function
to weigh evidence at the summary judgment stage, but rather to view the evidence in the light most
favorable to the non-moving party. Applying that standard to this case, there is a genuine issue of
material fact as to the extent of the damage Plaintiff suffered to his property interests. The jury
should decide whether Plaintiff’s testimony regarding the nature and extent of the damage to his real
property is credible. See id. Certainly, Defendants may cross-examine Plaintiff vigorously on the
notion that his property is now worth nothing.
To the extent Plaintiff seeks damages for mental anguish or emotional distress, Defendants
are entitled to summary judgment because Plaintiff has failed to offer evidence of any physical
manifestation of the emotional distress. See Babb, 747 S.E.2d at 481 (stating “[d]amages for
emotional or mental suffering are typically not recoverable, unless there is some physical
manifestation of the emotional distress”). It is not entirely clear whether Plaintiff still seeks
damages for mental anguish and emotional distress. At one point in the briefing, Plaintiff represents
that his actual damages are $171,900.00, which is the value of the property. See [Plaintiff’s
Response in Opposition to Defendants’ Motions for Summary Judgment, ECF No. 65 at 17].
Plaintiff also does not respond to or dispute Defendants’ argument that recovery of damages for
mental and emotional distress in a negligence action is unavailable unless there is some physical
manifestation of the emotional distress. Thus, in the event Plaintiff still seeks damages for mental
anguish and emotional distress, summary judgment is granted in favor of Defendants with respect to
South Carolina Unfair Trade Practices Act
Finally, Defendants move for summary judgment as to Plaintiff’s claim for violation of the
South Carolina Unfair Trade Practices Act (“SCUTPA”), S.C. Code Ann. §§ 39-5-10 - 39-5-560.
To recover on a claim for violation of SCUTPA, the plaintiff must establish: 1) the defendant
engaged in an unfair or deceptive act in the conduct of trade or commerce; 2) the unfair or deceptive
act affected the public interest; and 3) the plaintiff suffered monetary or property loss as a result of
the defendant’s unfair or deceptive acts. Wright v. Craft, 640 S.E.2d 486, 498 (S.C. Ct. App. 2006).
Defendants argue that Plaintiff has failed to establish that Defendants engaged in an unfair or
deceptive trade practice or that Defendants’ alleged conduct was anything more than a mistake.
Defendants contend that the alleged wrongful entries onto Plaintiff’s property occurred as a result of
an incorrect address on the Estes Property closing documents that was mistakenly transferred to the
servicing platform. Defendants also argue that Plaintiff has failed to offer any evidence that
Defendants’ alleged conduct affects the public interest.
Plaintiff responds that Defendants’ argument that their actions were due to a mistake based
on incorrect closing documents, alone, establishes a dispute as to a genuine issue of material fact.
Plaintiff also argues that Defendants’ alleged unfair and deceptive acts were committed on multiple
occasions citing GMAC’s wrongful entry into Plaintiff’s home in 2011. Plaintiff also notes that
Defendants in this case wrongfully entered his home on multiple occasions.
However, Plaintiff has failed to offer evidence sufficient to create a genuine issue of material
fact as to whether Defendants’ alleged wrongful conduct was unfair or deceptive or in any way
affected the public interest. Even viewing the evidence in the light most favorable to the Plaintiff, it
appears without question that Defendants’ wrongful entry onto Plaintiff’s property was the result of
a mistake in the closing documents that carried over to the servicing platform. It is undisputed that
Defendants no longer service the Estes mortgage and have fixed the error in their servicing
platform. Accordingly, there is little basis to conclude that the acts are capable of repetition or
otherwise affect the public interest. See Noack Enterprises, Inc. v. Country Corner Interiors of
Hilton Head Island, Inc., 351 S.E.2d 347, 350 (S.C. 1986) (stating SCUTPA is not available to
redress a private wrong where the public interest is unaffected). Also, there is insufficient evidence
that Defendants engaged in any unfair or deceptive acts. Plaintiff implies that Defendants’ actions
were motivated by a desire to illegally acquire the McLawhorn Property, yet there is no evidence
that Defendants’ actions were calculated in an effort to steal or falsely obtain title or ownership to
the property. For those reasons, Defendants are entitled to summary judgment with respect to
Plaintiff’s claim under the South Carolina Unfair Trade Practices Act.4
For the reasons stated above, the motion for summary judgment [ECF No. 59] filed by
Defendants, Altisource Residential Corporation and Ocwen Loan Servicing, LLC is GRANTED in
part and DENIED in part. The motion for summary judgment [ECF No. 60] filed by Defendant
Altisource Residential Corporation is DENIED.
IT IS SO ORDERED.
February 15, 2017
Florence, South Carolina
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
Additionally, it should be noted that this case does not fit within the parameters of a typical
SCUTPA claim. Although there is no requirement that the parties be in privity of contract, See Colleton
Preparatory Academy, Inc. v. Hoover Universal, Inc., 666 S.E.2d 247 (S.C. 2008), Plaintiff is not a
competitor, remote purchaser, or consumer of Defendants’ products or services. See Reynolds v. Ryland
Group, Inc., 531 S.E.2d 917 (S.C. 2000). SCUTPA was intended to apply to business or consumer
transactions. See Health Promotion Specialists, LLC v. South Carolina Bd. of Dentistry, 743 S.E.2d 808,
816 (S.C. 2013) (stating “it is clear the General Assembly intended for the SCUTPA to apply to business or
consumer transactions”). Plaintiff’s SCUTPA claim simply does not fit the mold.
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