UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 01-2152
MARK A. HENRIKSON,
Plaintiff - Appellant,
versus
FIRST UNION NATIONAL BANK, a federally
chartered Bank, formerly known as TMS
Incorporated, d/b/a The Money Store,
Defendant - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, District
Judge. (CA-99-3586)
Argued: May 7, 2002 Decided: January 14, 2005
Before WIDENER and MICHAEL, Circuit Judges, and C. Arlen BEAM,
Senior Circuit Judge of the United States Court of Appeals for the
Eighth Circuit, sitting by designation.
Affirmed in part, vacated in part, and remanded with instructions
by unpublished per curiam opinion.
Matthew Holmes Henrikson, BARNWELL, WHALEY, PATTERSON & HELMS,
L.L.C., Charleston, South Carolina, for Appellant. Thomas Stuart
White, HAYNSWORTH, SINKLER, BOYD, P.A., Charleston, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Mark A. Henrikson (plaintiff) appeals the district court’s
order granting First Union National Bank, et al. (defendants)
summary judgment on plaintiff’s breach of contract, interference
with economic relationships, conversion, trespass, and violation of
South Carolina Unfair Trade Practices Act claims. We affirm in
part, vacate in part, and remand with instructions.
I.
The following is a part of the opinion of the district court,
with its footnotes numbered [DC], stating facts which were before
the district court.
In 1993, Plaintiff applied for a loan from The Money
Source [or Money Store] for his home in Las Vegas, Nevada.
Plaintiff and Defendants executed a note for $67,800.00 to be
paid at a rate of 9.5% interest for 30 years. The note was
secured by a deed of trust establishing that the property
would serve as collateral for the note. Plaintiff was to make
monthly payments of $570.10 by the tenth day of that month
beginning in October 1993.
Plaintiff was often delinquent in his payments from
December of 1993 until Defendants foreclosed on the property
in October of 1996. By March of 1996, he had fallen five
months behind in his payments. At that time, Defendants
transferred Plaintiff’s file to John Symons in its foreclosure
department. Defendants issued a Notice of Default and
Election to Sell Under Deed of Trust and sent this notice by
certified mail to the property address on or before April 5,
1996. Apparently, Plaintiff no longer lived in the Las Vegas
home having moved to Charleston, South Carolina. However, he
was renting the property during this period.
According to a computer maintained chronology referred to
as “TPLS Comments” Symons spoke with Plaintiff on several
occasions regarding his delinquency. Plaintiff made an
attempt to remedy the situation beginning in June by making
four payments reducing his delinquency to four payments in a
arrears. However, Plaintiff failed to make any payments in
July or August 1996.
2
Defendants issued a Notice of Trustee’s Sale and sent
this notice by certified mail to the Las Vegas property on
August 13, 1996. The foreclosure sale was set for September
6, 1996. Symons spoke with Plaintiff in August regarding the
account. The two worked out a payment plan and the scheduled
foreclosure was postponed till October. However, the details
of that plan are disputed. Plaintiff contends that he entered
into an oral foreclosure agreement which entailed Plaintiff
making double mortgage payments per month by the last day of
each month until his account was current. Plaintiff further
contends that this agreement was memorialized in writing by
the forbearance agreement dated December 4, 1996. (Pl.’s Ex.
1). Defendants contend Plaintiff committed to make two full
payments by September 5, 1996 and another by September 22,
then two payments every month until the account was current.1
[DC1] The TPLS comments, relied on heavily by both parties,
demonstrate the confusion as to the details of the
payment arrangement. For example, one entry states
that Plaintiff knew he must make two full payments by
September 5, 1996 and another by September 22. (Def.’s
Ex. H, 8/26/96). However, in a later entry Symons
stated he was “lucky” he postponed the sale because
Plaintiff did make full two payments, (Def.’s Ex. H,
9/15/96). Still, another entry states that Plaintiff
must make another payment by October 24, 1996 before
the scheduled date for sale because Plaintiff’s
“foreclosure had been postponed too many times
already,” (Def.’s Ex. H, 10/15/96).
Furthermore, when Defendants considered rescinding the
sale which took place in October, a November 22, 1996
entry notes that the property was sold in October but
payments were made after that date. (Def.’s Ex. H,
11/22/96.) Further, the entry states “therefore our
sale invalid [sic],” and the account was reopened so
that Defendants could follow whether Plaintiff would
make two payments per month. (Id.) On December 4,
1996, the entry states:
We will give customer benefit of the doubt, he had
made previous [payment] arrangements [with] Symon
to pay [two full payments per month]. He has
adhered to this, we [received] [two full payments]
in 9/96, 10/96, & 11/96 all by end of the month.
Prepared [forbearance agreement] stipulating we
will agree to [two full payments per month] to be
[received] by the last day of [month] until
3
The district court concluded that defendants were estopped
from asserting a statute of limitations defense, which we affirm
for the reasons stated by the district court. But it granted
summary judgment for defendants nonetheless since it found The
Money Store had foreclosed on the property in late October and
directed a sale of the same by the trustee, thus the Money Store
had no right to make the forbearance agreement signed December 4
which it held did not relate back to the oral agreement made
between the parties in August/ September.2 It also held the oral
agreement did not satisfy Nevada’s statute of frauds.
We review de novo a district court’s grant of summary
judgment. Murrell v. Ocean Mecca Motel, Inc., 262 F.3d 253, 256
(4th Cir. 2001). When considering the nonmoving party’s evidence,
the court must draw all reasonable inferences in his favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
II.
The first issue is whether plaintiff complied with South
Carolina’s three-year statute of limitations under S.C. Code Ann.
account is current.
(Def.’s Ex. H, 12/4/96.)
2
We note that the oral agreement took place in late August
or early September. The district court used both in its opinion,
we follow the parties lead and use September.
4
§ 15-3-530 (1997). As the district court correctly found, the
defendants are estopped from claiming a statute of limitations
defense since plaintiff was led to believe by defendants that
Charlotte was the proper location for acceptance of service.
The second issue is whether the forbearance agreement
memorialized the September oral agreement between Symons and
plaintiff, and moreover, whether it satisfied the statute of
frauds. The district court stated,
While the court recognizes that this [forbearance]
agreement is signed by a representative of Defendant and the
details of the payment plan in the written agreement
apparently coincide with Plaintiff’s version of the payment
plan ... the December 4 agreement does not relate back to
bootstrap any agreements made before the sale, Plaintiff is
left only with the oral agreement he contends established that
he was required to make two payments per month until current.
We think, however, there is a genuine issue of material fact as to
whether the December 4 forbearance agreement memorialized the
September oral agreement, thereby satisfying the statute of frauds
and precluding summary judgement. Drawing a reasonable inference
from plaintiff’s proffered evidence, we believe that a jury could
find an oral agreement between plaintiff and defendant in
September, which was memorialized in December by the written
forbearance agreement,3 satisfying the statute of frauds.
3
See attached Forbearance Agreement.
5
The forbearance agreement complies with Nevada’s statute of
frauds. Nev. Rev. Stat. Ann. §111.205 states, in pertinent part,
that:
No estate or interest in lands, other than for leases for
a term not exceeding 1 year, nor any trust or power over or
concerning lands, or in any manner relating thereto, shall be
created, granted, assigned, surrendered or declared after
December 2, 1861, unless by act operation of law, or by deed
or conveyance, in writing, subscribed by the party creating,
granting assigning, surrendering or declaring the same, or by
his lawful agent thereunto authorized in writing.
Nev. Rev. Stat. Ann. §111.210 provides:
Every contract for the leasing for a longer period than
1 year, or for the sale of any lands, or any interest in
lands, shall be void unless the contract, or some note or
memorandum thereof, expressing the consideration, be in
writing, and be subscribed by the party by whom the lease or
sale is to be made.
As noted by the Nevada Court, the memoranda must adequately
describe the real property and the terms must be sufficiently
definite and certain to create an interest in the property. Butler
v. Lovoll, 620 P.2d 1251, 1253 (N.V. 1980). Here, the forbearance
agreement satisfies Nevada’s statute of frauds by providing the
location of the real property, the payment terms and dates,
possible recourse on default, and the signature of the subscribing
parties agent, Mrs. Townsley. The intention of the defendants, as
evidenced by their forbearance agreement, was to prevent
foreclosure by allowing plaintiff to double his monthly payments
until current.
6
Finding the forbearance agreement satisfied Nevada’s statute
of frauds, there is conflicting evidence which creates a genuine
issue of material fact as to whether the December 4th writing
memorialized the September oral agreement. Examination of the
forbearance document alone illustrates the possibility that it
recalled the September oral agreement. The written December
agreement references October payments- “Payments are to begin in
October, 1996, and continuing until account has been brought
completely current, and all attorneys’ fees and costs have been
paid.” These payments, however, had already been received by The
Money Store. There was no reason to refer to them unless the
forbearance agreement related back to the oral agreement made in
September. Also, the written agreement requires two payments per
month, made no later than the end of each month. Plaintiff
complied with these specific requirements in September, October,
and November. The written forbearance document, however, was not
received until December.4 With the forbearance agreement referring
to October payments and the plaintiff having complied with the
terms of the document for months before its receipt, a genuine
issue of material fact exists as to whether the written December
4th writing memorialized the September oral agreement.
4
Plaintiff was making payments pursuant to the terms of the
forbearance agreement before receipt of the December 4th writing.
Unlike the oral forbearance agreement, which required double
payments by the end of each month, the original note required the
$570.10 payment by the 10th day of that month.
7
Moreover, because the testimony from the parties may be
conflicting on this issue, and all reasonable inferences are to be
taken in the nonmoving party’s favor, summary judgement is not
appropriate. Mrs. Townsley, defendant’s employee, testified that
the October 25, 1996 sale was invalid since the plaintiff had made
two full payments, in accord with the oral agreement with Symons,
in both September, October, and November. In addition, Mrs.
Townsley, as noted in the December 4th writing5, confirmed that
defendants would “republish the property for sale” if the December
payments were not made.6 Symons also stated he was “lucky” he
postponed the sale scheduled in September because Plaintiff made
two full payments in that month. Even if contradicted by other
evidence, this testimony illustrates a genuine issue of material
fact as to whether the September oral agreement was memorialized by
the December 4th written forbearance agreement.7
5
“ANY DEFAULT OF THESE ARRANGEMENTS WILL RESULT IN THE
IMMEDIATE RETURN TO THE FORECLOSURE ACTION.” See attached
Forbearance agreement.
6
Plaintiff contends that he did not make the December
payments because defendants decided to stand on the October
foreclosure.
7
Symons testified in his deposition:
Q. So Ms. Townsley would then have had the authority to
modify and memorialize in writing what you had entered into
orally?
A. Yes.
(Deposition of Symons, October 23, 2000, p.39)
8
Of equal significance, however, is the case of Summa Corp. v.
Greenspun, 607 P.2d 569 (Nev. 1980). Although Summa Corp. is not
entirely clear that the oral forbearance agreement is within the
statute of frauds.8 We will assume that it is for the moment.
That case held that an oral agreement to surrender a secured lien
under a deed of trust was within the statute of frauds, 607 P.2d at
572-3. Even so, the case held that the oral agreement to surrender
the lien was not invalidated by the statute of frauds because of
part performance. In the case at hand, there is no doubt that six
payments were made on the deed of trust during September, October,
and November, 1996, instead of the three which were due under the
deed of trust. This was consistent with the forbearance agreement,
as admitted by the employees of The Money Store, Symons and Mrs.
Townsley, with the only significant difference we can see in this
record is whether any or three payments were due in September
rather than two payments, as made by Henrikson. Indeed, Mrs.
Townsley, the employee of the Money Store, prepared the writing of
December 4th, and Symons, who had initially made the agreement,
testified as follows:
Q. Okay. At some point you, on behalf of The Money
Store, entered into a forbearance agreement with Mark to
make payments?
A. Uh-huh.
8
See Summa Corp. v. Greenspun, 655 P.2d 513 (Nev. 1983) at
514, reciting affirmance of trial court in its entirety.
9
Q. Yes? Saying yes for the court reporter?
A. Yes.
Q. And you had the authority to do that?
A. Yes.
Q. And that was a standard part of your job, right?
A. Correct.9
So there is at least a question of material fact as to whether or
not Henrikson should be allowed enforcement of the oral forbearance
agreement, even if its provisions are not in writing. The only
question as to part performance is whether the six payments
Henrikson made were as agreed upon, instead of seven payments,
which Symons argues were agreed upon. The understanding of Mrs.
Townsley was obviously that the September payments were not under
the forbearance agreement, but there is no dispute that the
forbearance agreement was made. There is also no dispute that six
payments were made, thus there was evidence of part performance of
the forbearance agreement.
The third issue is whether the defendants retained a legal or
beneficial interest in the property, providing consideration for
the December 4 forbearance agreement. Defendants contend that
there was no authority for The Money Store to enter into the
forbearance agreement since the property had been sold and it, in
9
Mrs. Townsley and Symons were foreclosure specialists of
The Money Store with authority to make forbearance agreements.
10
turn, retained no interest in the house. “TMS did not own the
property when it [the December 4th paper] was sent.” Br., p.15.
Assuming the forbearance agreement did in fact memorialize the
alleged September oral agreement, defendants argue that when they
sold the house any and all rights were transferred to control or
modify instruments of the indebtedness regarding the property.10
The argument goes that while The Money Store may have agreed to a
rescission of the sale, it had no authority to make that very
agreement. Since no rescission was accomplished, defendants claim
they had no interest in the property.11 The district court agreed
and concluded that “Defendants had actually and justifiably
exercised their rights under the deed of trust by selling the
property and therefore any consideration, in this case Defendants’
forbearance, failed. Thus Defendants could not enter into a
forbearance agreement in this circumstance until after the sale had
been rescinded.”
We disagree with the defendants’ assertion and the district
court’s holding that there is no genuine issue of material fact as
to whether defendants retained a beneficial or legal interest in
the property. Mrs. Townsley testified that the October 25, 1996
10
On October, 25, 1996, the trustee’s deed recited that the
property was sold at public auction to the Bank of New York for
$72,907.11.
11
The Money Store now argues that Mrs. Townsley was “simply
mistaken about the ability of TMS to enter into a forbearance
agreement....” Br., p.13.
11
sale actually deeded the property to the defendants, that they held
the property, transferred from their foreclosure department, in the
real-estate owned department (REO). A part of Mrs. Townsley’s
deposition follows:
Q: And when did the sale occur?
A: 10-25-96
...
Q: REO, what’s that mean?
A: Real estate owned.
Q: And what does that mean?
A: After we foreclosed on the property, its transferred over
to REO for sale.
Q: In Nevada the title reverts to the Money Store?
A: Yes
Q: And then you own it for some period of time until you sell
it?
A: Yes.
From this testimony, it appears there is a question of material
fact as to whether the beneficial or legal interest in the property
was completely transferred on October 25, 1996 to the Bank of New
York. In this connection, we note that the Bank of New York
claimed to be the beneficial owner of the indebtedness under a
servicing agreement dated August 31, 1993, recorded February 25,
12
1994, although The Money Store claimed to be the beneficial owner
in its notice of default recorded March 28, 1996.
Also relevant to this transaction is the fact that if the
forbearance agreement existed, and according to this record there
is little doubt that it did exist in some form or another, the sale
of the property by the trustee, at the direction of the Money
Store, was in violation of the forbearance agreement and thus the
sale of the property by the trustee was without lawful authority
for that reason. It is at once apparent that on the facts of this
case in this record, it could easily be decided by a fact-finder
that the Money Store sought to avoid its obligations under the
forbearance agreement by ordering the trustee to sell the property,
thus creating by its own unauthorized act a defense to enforcement
of the forbearance agreement. We are of opinion that summary
judgment should not have been granted to The Money Store on such
facts without at least an unraveling of the facts and law under
Nevada law, which was not done here. This gives us another “reason
to believe that the better course would be to proceed to a full
trial.” Anderson v. Liberty Lobby, 477 U.S. at 255.
The judgment of the district court as to the application of
the statute of limitations is accordingly affirmed. The summary
judgment of the district court in favor of the defendants is
accordingly vacated, and the case is remanded to the district court
for proceedings not inconsistent with this opinion.
13
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED WITH INSTRUCTIONS
[The Money Store Logo]
December 4, 1996
FORBEARANCE AGREEMENT
Re: TMS loan #: 71593917
Property Address: 1959 Miner Way
Las Vegas, NV 89104
This forbearance agreement (repayment plan) is by and between Mark
Henrikson, mortgagor, and The Money Store, mortgagee. It is legal
and binding and can be used in a court of law. This agreement does
not constitute any modification to the original Note. It is a
mutual agreement arrived at to assist the mortgagor in curing the
default of the above referenced loan. All payments submitted MUST
be certified funds (cashier’s check, money order, or Western Union)
and MUST be submitted by the due date specified.
ANY DEFAULT OF THESE ARRANGEMENTS WILL RESULT IN THE IMMEDIATE
RETURN TO THE FORECLOSURE ACTION.
The agreement is as such:
2 full monthly payments, totaling $1140.20, are to be made each
month, to be received in our office no later than the last day of
the month.
Payments are to begin in October, 1996, and continuing until
account has been brought completely current, and all attorney’s
fees and costs have been paid.
All payments are to be submitted to:
The Money Store
Attn: Laurie Townsley- Asset Control Dept.
3464 El Camino Ave, Suite 110
Sacramento, CA 95821
______________ _______ [signed by Mrs. Townsley] 12-4-96
Mark Henrikson Date Laurie Townsley Date
14
as agent for
The Money Store, Inc.
15