Federal Deposit Insurance Corporation v. Emig

Filing 26

JUDGMENT OF FORECLOSURE AND SALE,There is due the FDIC-R on the Note and Mortgage the sum of $595,329.77, as set out in the Findings of Fact herein, together with interest at the rate provided therein on the balance of principal from the date aforesaid to the date hereof. (gpre, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
ANDERSON DIVISION

Case No. 8:12-cv-00449-TMC
FEDERAL DEPOSIT INSURANCE
CORPORATION, as Receiver for
COMMUNITY BANK AND TRUST,

Plaintiff,
vs.
DANA JOANN EMIG,
Defendant.

JUDGMENT OF FORECLOSURE AND SALE
Deficiency Judgment Waived
Plaintiff, Federal Deposit Insurance Corporation, as Receiver for Community Bank and
Trust, (“FDIC-R” or “Plaintiff”) has filed a Motion for Default Judgment (“Motion”) and a Brief
in Support thereof (“Brief”) pursuant to Rule 55 of the Federal Rules of Civil Procedure.
Plaintiff filed the Motion on April 5, 2012. No objections or other responses were received from
any defendant.
This case is a mortgage foreclosure action. Plaintiff is the receiver for Community Bank
and Trust (“CBT”) of a Note, a Mortgage and related documents executed by Defendant Dana
Joann Emig (“Defendant” or “Emig”). Having reviewed and considered the Motion and Brief
filed by Plaintiff and based on an examination of the entire record of the case, the Court
GRANTS Plaintiff’s Motion and makes the following Findings of Fact and Conclusions of Law:

FINDINGS OF FACT
The following facts are not in dispute.
1. The Lis Pendens was filed on January 27, 2012, in the Circuit Court of Oconee County,
South Carolina.
2. The Complaint, Summons, and Lis Pendens were filed on February 16, 2012, with this Court.
3. Service was made upon the Defendant named in this Order as shown by the affidavit of
service dated February 25, 2012 and Notice of Filing entered March 5, 2012 filed with the
Court.
4. According to the affidavit filed herein, Defendant failed to file an answer to the Plaintiff’s
Complaint and is in default.
5. According to the affidavit filed herein, Defendant is not in the military service of the United
States of America, as contemplated under The Servicemembers Civil Relief Act, 50 U.S.C.
App. §501, et seq. and any amendments thereto.
6. Defendant was notified of the time, date, and place of the hearing in this matter.
7. On or about September 23, 2008, for valuable consideration, Defendant Emig made,
executed and delivered her written Commercial Promissory Note (“September Note”) to
CBT in the original principal sum of Four Hundred Forty-Five Thousand Five Hundred
Fifty-One Dollars and 41 Cents ($445,551.41), with interest as set forth in the September
Note. The September Note had an initial maturity date of September 23, 2009.
8. On or about January 28, 2009, for valuable consideration, Defendant Emig made, executed
and delivered her Loan Modification and Forbearance Agreement in the modified amount of
$456,453.33 (“Modified Note”), with interest as set forth in the Modified Note that had a

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maturity date of July 28, 2009. The September Note and Modified Note are collectively
referred to herein as “Note.”
9. Defendant Emig executed a Mortgage contemporaneously with the September Note in the
amount of Four Hundred Forty-Five Thousand Five Hundred Fifty-One Dollars and 41 Cents
($445,551.41), thus securing repayment thereof in favor of CBT, which was recorded on
October 6, 2008, in the Register of Deeds Office for Oconee County, South Carolina in Book
2669 at Pages 347-351 (the “Mortgage”).
10. The Mortgage constitutes a first priority mortgage lien on the property, subject only to ad
valorem or other liens/taxes given priority by statute.
11. The Home Affordable Modification Program is not applicable to the Mortgage which is the
subject of this action as the promissory note giving rise to this matter is a commercial loan;
and the property is not an owner occupied primary residence.
12. Defendant Emig, the Mortgagor herein, is not an owner-occupier, as defined by the South
Carolina Supreme Court in its Administrative Order 2011-05-02-01.
13. The Plaintiff in this action is the owner and holder or nominee for the owner and holder of
the Note and Mortgage.
14. Any Notice required by the terms of the first Mortgage or by state and federal statutes has
been given to the applicable defendant prior to the commencement of this action, as
evidenced by the Notice of Sale letter sent to Defendant Emig.
15. Any and all conditions precedent to the obligations of Defendant Emig have occurred,
including but not limited to Defendant’s default on the loan, service of the Complaint on
Defendant, Defendant’s failure to answer, Defendant is not in the military, and Plaintiff’s

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verification of the debt, as evidenced by the Affidavit of Service, Affidavit of Default,
Affidavit of Non-Military Service, and Affidavit and Verified Statement of Account.
16. Payment due on the Note has not been made as provided for therein, and the Plaintiff, as the
holder or nominee for the holder thereof, has elected to require immediate payment of the
entire amount due thereon and has placed the Note and first Mortgage in the hands of the
attorneys of record herein for collection by foreclosure.
17. The sum of $7,814.501 is a reasonable fee to allow as attorney fees for Plaintiff's attorneys
for services performed and anticipated to be performed until final adjudication of the within
action, under the terms of the Note and Mortgage. These sums are likewise reasonable based
on the time necessarily devoted to representation of the Plaintiff during these proceedings. In
addition, the services counsel performed for the Plaintiff, including the number and types of
pleadings and documents prepared, the incumbent liabilities, and the difficulties involved in
this particular case support the amount awarded. The fees are also reasonable given the
professional standing of the Plaintiff’s counsel and their experience in handling foreclosure
matters. The fees awarded herein are also reasonable in light of the fees customarily awarded
by this court for similar services in this locality. Moreover, the efforts of Plaintiff’s counsel
have had the beneficial result of a prompt foreclosure of the mortgage. Services anticipated
to be performed until final adjudication contemplates completion of this matter within a
reasonable time and does not include circumstances delaying conclusion beyond the normal
time.

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The amount of $7,814.50 is the total attorney’s fees and anticipated attorney fees to conclude this case. However,
attorney’s fees in the amount of $3,364.37 were advanced on the loan and are a part of the other fees as set forth in
the Affidavit and Verified Statement of Account. Therefore, the total attorney fees were reduced by the amount of
the advance to avoid a request for recovery under the loan and the Affidavit of Attorney Fees.

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18. According to the Plaintiff’s accounting, after all payments received by the Plaintiff have been
credited to the subject loan, the amount due and owing on the Note, with interest at the rate
provided in the Note, and other costs and expenses of the within action, including an
attorney’s fee, secured by the Note and Mortgage, is as follows:

(a)

Principal due as of August 22, 2012

$450,162.96

(b)

Interest thereon at the rate of 7%
per annum ($86.33 per day) through
September 7, 2012

$124,668.06

(c)

Late Fees

$1,900.00

(d)

Taxes

$2,532.38

(e)

Insurance Fees

$2,502.91

(f)

Processing Fee

$750.00

(g)

Other permissible expenses

$7,303.13

DEBT secured by note and mortgage
including interest to September 7, 2012
Attorney’s fees through April 2, 2012

$285.20

Anticipated costs (ad and recording fee)

$765.00

Anticipated Attorney’s fees (to conclude
case)

$1,905.50

SUBTOTAL attorney fees and costs

$5,510.33

TOTAL DEBT

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$2,554.632

Costs through April 2, 2012 3

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$589,819.44

$595,329.77

The total amount is $5,919.00, but was reduced by $3,364.37, as this amount was advanced on the loan.
The Title Search Fee is included in the costs of collection. The fee was $140.50.

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Interest for the period from the date shown in (b) above through the date of this judgment at the
above stated rate to be added to the above stated “Total Debt” to comprise the amount of the
judgment debt entered herein and interest after the date of judgment at the rate of 7 % per annum
(pursuant to the terms of the Note and Mortgage) on the judgment debt shall be added to such
judgment debt to comprise the amount of Plaintiff's debt secured by the Mortgage and note
through the date to which such interest is computed.
19. Plaintiff is seeking the usual foreclosure of the Mortgage.
20. Plaintiff expressly waived the right to a personal or deficiency judgment pursuant to S.C.
Code Ann. § 29-3-660 against Defendant Emig should the proceeds of sale not be sufficient
to satisfy the judgment debt.
CONCLUSIONS OF LAW
Based on the record herein, I conclude as follows:
(a) The Plaintiff should have judgment of foreclosure of the Note and Mortgage and the
mortgaged property should be ordered sold at public auction after due advertisement.
(b) The Plaintiff is entitled to attorney’s fees and anticipated attorney fees in the amount of
$7,814.50 for these proceedings.
(c) The Plaintiff is entitled to costs and anticipated costs of $1,050.50.
(d) The Plaintiff is entitled to the Total Debt of $595,329.77.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED AS FOLLOWS:
21. There is due the FDIC-R on the Note and Mortgage the sum of $595,329.77, as set out in the
Findings of Fact herein, together with interest at the rate provided therein on the balance of
principal from the date aforesaid to the date hereof.
22. Plaintiff shall have judgment demanded against Defendant Emig.

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23. The amount due in the preceding paragraph (the “Total Debt” as set out in the Finding of
Fact herein) shall accrue interest at the rate of the respective note rate(s) per annum and
together, with such interest, shall constitute the total judgment debt due the Plaintiff.
24. The amount of the judgment shall be subject to increase to permit the Plaintiff to recover
additional costs, commissions and expenses not included in the minimum deposit previously
made in compliance with S.C. Code Ann. § 14-11-310. It may also increase to include
supplemental compensation for attorney’s services not contemplated by the initial fee award.
Jurisdiction over the fee award and total debt is reserved to facilitate the assessment and
payment for any such costs and/or supplemental compensation.

Such additional costs,

commissions and expenses may be established by affidavit and shall be adjudicated by the
Court without further hearing.
25. The Defendant liable for the aforesaid judgment debt of the Note and Mortgage, including
interest at the rate of 7% per annum, shall on or before the date of sale of the property
hereinafter described, pay to the Plaintiff, or Plaintiff’s attorney, the amount of Plaintiff’s
debt as aforesaid, together with the costs and disbursements of this action.
26. On default of payment at or before the time herein indicated, the mortgaged premises
described in the Complaint shall be sold by the United States Marshal for the State of South
Carolina, or his authorized Deputy or other agent appointed by this Court, after having
advertised for sale the mortgaged premises once a week for four weeks prior to sale as
required by 28 U.S.C. § 2002, at public auction, at 11:00 a.m. on November 5, 2012 at the
Oconee County Courthouse, 205 W. Main Street, Walhalla, South Carolina 29691, or
the location, and upon the date and time set forth in the Notice of Sale, or on some
convenient sales day hereafter (should the regular day of judicial sales fall on a legal holiday,

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then and in such event, the sales day shall be on Tuesday next succeeding such holiday), on
the following terms, that is to say:

a. For cash: The United States Marshal for the State of South Carolina, his authorized
Deputy or other agent appointed by this Court, will require a deposit of 5% on the
amount of the bid in cash or equivalent (unless Plaintiff is the successful bidder) the same
to be applied to the purchase price if compliance is made, but in the event of
noncompliance, the deposit may be forfeited without further hearing and applied first to
the costs of the action and then to Plaintiffs debt. Should the successful bidder at the
regularly conducted sale fail or refuse to either make the required deposit at the time of
bid or comply with the other terms of the bid within twenty (20) days, then the property
may be re-sold on the same terms and conditions on the same or some subsequent Sales
Day, but at the risk of the defaulting bidder(s).
b.
Interest on the balance of the bid shall be paid to the day of compliance at the rate
of 7% per annum.
c.
The sale shall be subject to taxes and assessments, existing easements and
restrictions and easements and restrictions of record, and any other senior encumbrances.
d.
Purchaser to pay for any statutory commission on sale from the proceeds of the
final bid amount.
e.
Purchaser shall pay for the deed preparation, costs of recording the Deed,
satisfaction of mortgage, and Deed Stamps.
f.
Purchaser shall be entitled to possession of the premises only after Purchaser fully
complies with the bid amount and a deed is issued by the Court.
g.
If Plaintiff is the successful bidder at said sale, for a sum not exceeding the
amount of costs, expenses and the Total Debt in full, Plaintiff may pay to the United
States Marshal for the State of South Carolina, his authorized Deputy or other agent
appointed by this Court only the amount of the costs and expenses, crediting the balance
of the bid on the Total Debt.
27.

Personal or deficiency judgment having been waived, the sale will not remain open for

thirty (30) days pursuant to S.C. Code Ann. § 15-39-720.
28.

Plaintiff may waive any of its rights, including its right to a deficiency judgment in prior

to sale consistent with the provisions that would be applicable under Rule 71(c) of the South
Carolina Rules of Civil Procedure were this case in state court.
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29.

The United States Marshal for the State of South Carolina, his authorized Deputy or other

agent appointed by this Court will apply the proceeds of the sale as follows:

FIRST: To the payment of costs and Disbursements of this action.
NEXT: To the payment to the Plaintiff or Plaintiff’s attorney, of the amount of Plaintiff’s
debt and interest (including attorney fees), or so much thereof as the purchase money will pay on
the same.
NEXT: Any surplus shall be held by United States Marshal for the State of South
Carolina, his authorized Deputy or other agent appointed by this Court pending further Order of
this Court.
30.

Upon full compliance with the terms of sale, the United States Marshal for the State of

South Carolina, his authorized Deputy or other agent appointed by this Court shall convey title in
fee simple to the purchaser, or his nominee; the purchaser shall be let into possession of the
premises upon production of the United States Marshal for the State of South Carolina, his
authorized Deputy or other agent appointed by this Court’s deed; and all persons holding
adversely to the purchaser shall be ejected from the premises by the United States Marshal or
Sheriff of the county where the property is located.
31.

The deed of conveyance made pursuant to said sale shall contain the names of only the

first-named Plaintiff and the first-named Defendant(s), and the Defendant(s) who was/were the
titleholder(s) of the mortgaged property at the time of the filing of the notice of pendency of the
within action, and the name of the grantee; and, the Register of Deeds/Clerk of Court is
authorized to omit from the indices pertaining to such conveyance the names of all parties not
contained in said deed.
32.

After the sale of the premise, and as soon as the sale by the United States Marshal for the

State of South Carolina, his authorized Deputy or other agent appointed by this Court is
complete, and has been approved by the Court, the Mortgagors, or other persons in possession,
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shall immediately move from the premises, and give up the premises, without damage or
vandalism. Upon failure of any Mortgagors, or persons in possession, to vacate the premises the
United States Marshal or a duly authorized Deputy, or the Sheriff of the county where the
property is located, is authorized and empowered to enter upon the premises, and evict them
therefrom. The United States Marshal or a duly authorized Deputy, or the Sheriff of the county
where the property is located, is also authorized to remove from the premises any furniture or
other possessions of the mortgagors, or other persons in possession, and any interference with the
activities of the Marshal will be upon pain of contempt of Court.
33.

The Defendant named herein, and all persons whosoever claiming under Defendant, be

forever barred and foreclosed of all right, title, interest, and equity of redemption or lien in the
said mortgaged premises so sold, or any part thereof.
34.

In accordance with Rule 77(d) of the Federal Rules of Civil Procedure, the Clerk of Court

shall serve a notice of entry of this Judgment of Foreclosure and Sale upon all parties not in
default for failure to appear herein.
35.

The undersigned will retain jurisdiction to do all necessary acts incident to this

foreclosure including, but not limited to, the issuance of a Writ of Assistance and disposing of
surplus funds consistent with the provisions that would be applicable under Rule 71(c) of the
South Carolina Rules of Civil Procedure were this case in state court.
36.

The following is a description of the premises herein ordered to be sold:

ALL that certain piece, parcel or lot of land lying and being situate in the County
of Oconee, State of South Carolina, being known and designated as LOT
NUMBER TWENTY-ONE (21) on that certain plat of Sugar Hill Subdivision,
made by Nu-South Surveying Inc., dated June 18, 1997 of record in the Office of
the Clerk of Court for Oconee County, South Carolina in Plat Book A510, at Page
8, and having the metes and bounds, courses and distances as upon said Plat
appear. Said lot being bounded on the North by Lot no. 22; on the east by Lake
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Breeze Lane; on the south by Lot no. 20; and on the west by Hartwell Lake. Also
see new survey prepared by Clemson Engineering Services, H. Jay Cooper, dated
July 20, 2005, and recorded in the aforesaid Clerk’s office in Plat Book B80, at
page 6.
Also included in this conveyance is a non-exclusive right of way and easement
over and across the 50 foot right of way containing 0.71 acres, more or less, as
shown on a survey for Hartwell Lake Investors by Nu-South Surveying, Inc.,
dated August 29, 1996, of record in the aforesaid Clerk's office in Plat Book
A440, at Page 1, together with a right of way and easement over and across the
remaining portion of Lake Breeze Lane as shown on the first abovementioned
subdivision plat, said rights of way and easements being for the purpose of ingress
and egress to and from the above described lot and Lonesome Valley Road (S.C.
Hwy. 478) all as shown on the aforementioned plat; said right of way and
easement is granted until such time as the roadway constructed within said rights
of way are accepted for maintenance by Oconee County, South Carolina.
This being the same property conveyed unto Dana Emig by deed of Doug Emig,
dated September 23, 2008, and recorded in the Office of the Register of Deeds for
Oconee County, South Carolina in Book 1686 at Page 16.
TAX MAP NO. 305-00-01-172
STREET ADDRESS NO.: 129 LAKE BREEZE LANE
WESTMINSTER, SC 29693

37.

FDIC-R is authorized and directed to cancel the Note securing Lot 21 and mark it

satisfied.

AND IT IS SO ORDERED.
s/Timothy M. Cain
Timothy M. Cain, U.S. District Court Judge
District of South Carolina
September 18, 2012
Anderson, South Carolina

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