THE STATE OF SOUTH CAROLINA
In The Supreme Court
Gary Kubic, in his official capacity as County
Administrator for Beaufort County, South Carolina, and
Dale L. Butts, in his official capacity as Register of
Deeds for Beaufort County, South Carolina,
Respondents,
v.
MERSCORP Holdings, Inc., Mortgage Electronic
Registrations Systems, Inc., Bank of America, N.A.,
Deutsche Bank National Trust Company, JPMorgan
Chase Bank, N.A., CitiMortgage, Inc., HSBC Bank USA,
N.A., HSBC Mortgage Corporation (USA), HSBC
Mortgage Services, Inc., South State Bank, Coastal
Banking Company, Inc., and Tidelands Bank, Petitioners.
__________
2013-CP-07-1340
__________
Thessa G. Smith, in her official capacity as County
Administrator for Allendale County, South Carolina, and
Elaine Sabb, in her official capacity as Register of Deeds
for Allendale County, South Carolina, Respondents,
v.
MERSCORP Holdings, Inc., Mortgage Electronic
Registrations Systems, Inc., Bank of America, N.A.,
South State Bank, SunTrust Mortgage, Inc., Branch
Banking and Trust Company, Citibank, N.A., Quicken
Loans, Inc., Wells Fargo Bank, N.A., Regions Bank, and
Green Tree Servicing, LLC, Petitioners.
__________
2014-CP-03-00146
__________
Andrew P. Fulghum, in his official capacity as County
Administrator for Jasper County, South Carolina, and
Patsye M. Greene, in her official capacity as Register of
Deeds for Jasper County, South Carolina, Respondents,
v.
MERSCORP Holdings, Inc., Mortgage Electronic
Registrations Systems, Inc., Bank of America, N.A.,
CitiMortgage, Inc., South State Bank, Nationstar
Mortgage, LLC, Wells Fargo Bank, N.A., SunTrust
Mortgage, Inc., Branch Banking and Trust Company, 1st
Choice Mortgage/Equity Corporation of Lexington,
Regions Bank, and Countrywide Home Loans, Inc.,
Petitioners.
__________
2014-CP-27-00242
__________
Sabrena P. Graham, in her official capacity as County
Administrator for Hampton County, South Carolina, and
Mylinda Nettles, in her official capacity as Register of
Deeds for Hampton County, South Carolina,
Respondents,
v.
MERSCORP Holdings, Inc., Mortgage Electronic
Registrations Systems, Inc., Bank of America, N.A.,
South State Bank, Wells Fargo Bank, N.A., SunTrust
Mortgage, Inc., Branch Banking and Trust Company, and
Countrywide Home Loans, Inc., Petitioners.
__________
2014-CP-25-00262
__________
Kevin Griffin, in his official capacity as County
Administrator for Colleton County, South Carolina, and
Debbie Gusler, in her official capacity as Register of
Deeds for Colleton County, South Carolina,
Respondents,
v.
MERSCORP Holdings, Inc., Mortgage Electronic
Registrations Systems, Inc., Bank of America, N.A.,
South State Bank, SunTrust Mortgage, Inc., Branch
Banking and Trust Company, Countrywide Home Loans,
Inc., Citibank, N.A., TD Bank, N.A., Quicken Loans,
Inc., and Capital One, N.A., Petitioners.
___________
2014-CP-15-00650
___________
Appellate Case No. 2015-001366
Appeal from Beaufort County
The Honorable R. Lawton McIntosh, Circuit Court Judge
Opinion No. 27619
Heard February 10, 2016 – Filed March 30, 2016
REVERSED
J. Edward Bell, III, of Bell Legal Group, of Georgetown,
for Petitioner Capital One, N.A.; Tobias G. Ward, Jr. and
J. Derrick Jackson, of Tobias G. Ward, Jr., PA, of
Columbia, for Petitioner 1st Choice Mortgage/Equity
Corporation of Lexington; B. Rush Smith, III, and Brian
P. Crotty, of Nelson Mullins Riley & Scarborough, LLP,
of Columbia, for Petitioners MERSCORP Holdings, Inc.,
et al., Bank of America, N.A., Countrywide Home Loans,
Inc., Quicken Loans, Inc., Wells Fargo Bank, N.A.,
CitiMortgage, Inc. and Citibank, N.A., JPMorgan Chase
Bank, N.A., Deutsche Bank National Trust; C. Pierce
Campbell, of Turner Padget Graham & Laney, PA, of
Florence, for Petitioner South State Bank; Michael C.
Griffin, of Bradley Arant Boult Cummings, LLP, of
Charlotte, NC, for Petitioner Nationstar Mortgage, LLC;
William Grayson Lambert, of McGuireWoods, LLP, of
Charlotte, NC, for Petitioner TD Bank, N.A.; Clay M.
Carlton and Robert M. Brochin, of Miami, FL, for
Petitioner MERSCORP Holdings, Inc., et al.; Brian A.
Herman, of Morgan Lewis & Bockius LLP, of New
York, NY, for Petitioner JPMorgan Chase Bank, N.A.;
Lucia Nale and Thomas V. Panoff, of Mayer Brown
LLP, of Chicago, IL, for Petitioners CitiMortgage, Inc.
and Citibank, N.A.; Robert E Sumner, IV, of Moore &
Van Allen, PLLC, of Charleston, for Petitioner Tidelands
Bank; Joseph F. Yenouskas and Thomas F. Hefferon, of
Goodwin Procter LLP, of Washington, DC, for
Petitioners Bank of America, N.A., Countrywide Home
Loans, Inc., Quicken Loans, Inc., and Wells Fargo Bank,
N.A.; Elizabeth A. Frohlich, of Morgan Lewis &
Bockius, of San Francisco, CA, for Petitioner Deutsche
Bank National Trust.
James P. Scheider, Jr., Roberts Vaux, and Antonia T.
Lucia, of Vaux Marscher Berglind, P.A., of Bluffton, for
Respondents.
ACTING CHIEF JUSTICE HEARN: This case is a consolidation of five
separate lawsuits instituted by county administrators and registers of deeds in
Allendale, Beaufort, Colleton, Hampton, and Jasper Counties (collectively,
Respondents) against MERSCORP Holdings, Inc.; Mortgage Electronic
Registrations Systems, Inc. (MERS); and numerous banking institutions
(collectively, Petitioners). Respondents contend Petitioners have engaged in a
practice of fraudulent recordings that have disrupted the integrity of the public
index Respondents are statutorily required to maintain. Petitioners filed a motion
to dismiss, which the trial court denied. Petitioners then filed a motion for a writ
of certiorari pursuant to Rule 245, SCACR, which this Court granted. We now
reverse the decision of the trial court and dismiss Respondents' suits.
FACTUAL/PROCEDURAL BACKGROUND
Because this appeal arises from the denial of a motion to dismiss, we accept
the facts as alleged in the complaint for the purposes of our analysis. MERS is a
subsidiary of MERSCORP and is a member-based organization made up of lenders
and investors, including mortgage banks, title companies, and title insurance
companies. When MERS member-lenders issue a mortgage and promissory note,
MERS is listed as the mortgagee, specifically as "nominee" in place of the lender.
The mortgage is then recorded in the county where the real property is located, and
internally, the loan is registered in the MERS system. Accordingly, MERS
becomes the grantee in the public index, despite the fact that MERS holds no
security interest in the promissory note. This allows the lender to retain priority
with MERS as the nominee without having to record each time there is an
assignment of the mortgage when the promissory note is transferred. MERS
essentially provides a convenient framework through which members can transfer
notes amongst themselves without having to record each exchange. However, as a
result of this system, the public index may not accurately reflect who has an
interest in the real property, as the note has been severed from the mortgage.
Respondents filed lawsuits in their respective counties against Petitioners,
alleging fraud and misrepresentation, unfair trade practices, conversion, and
trespass to chattels. Additionally, Respondents sought a declaratory judgment
stating Petitioners had caused damage to the public index in recording false
documents. Furthermore, they requested injunctive relief enjoining Petitioners
from recording any document indicating MERS has a lien on real property as well
as requiring Respondents to correct the falsely filed documents. Respondents
prayed for direct and consequential damages to remediate deficiencies in the index,
as well as compensatory and punitive damages in the event the errors in the records
could not be ameliorated. Chief Justice Jean H. Toal signed an order consolidating
the cases and assigning them to Business Court Judge R. Lawton McIntosh.
Petitioners then filed a joint motion to dismiss, arguing Respondents "lack
contractual standing," the lawsuit was barred by section 30-9-30 of the South
Carolina Code (2007), the parties may designate MERS as mortgagee, and the
complaints fail to state a cognizable claim.
The trial court denied the motion to dismiss in a form order stating: "As this
is a novel issue of law[,] motions to dismiss are inappropriate at this time under
Byrd v. Irmo [High School, 321 S.C. 426, 468 S.E.2d 861 (1996)]. No formal
order to follow." Petitioners filed a petition for a writ of certiorari, which this
Court granted.1
ISSUE PRESENTED
Did the trial court err in failing to grant Petitioners' motion to dismiss
because Respondents failed to state a cause of action?
LAW/ANALYSIS
Petitioners contend section 30-9-30(B) does not provide Respondents
authority to bring this cause of action, and on this ground, the suit should be
dismissed. Respondents argue this statute allows them to bring this suit by
implication. We agree with Petitioners.2
1
The denial of a motion to dismiss is ordinarily not immediately appealable;
however, in this matter the Court found a writ of certiorari was warranted. See
Laffitte v. Bridgestone Corp., 381 S.C. 460, 471, 674 S.E.2d 154, 160 (2009)
(explaining this Court may issue a writ of certiorari when exceptional
circumstances exist despite an order not being directly appealable).
2
The parties dispute the scope of the issue on appeal. Petitioners maintain the
issue is whether the General Assembly created a right of action for Respondents to
bring this suit. Respondents prefer to reframe the issue more broadly and contend
it is one of standing. Whether a party has standing and whether a party has stated a
cognizable cause of action are discrete inquiries. See, e.g., Georgetown Cnty.
League of Women Voters v. Smith Land Co., 393 S.C. 350, 358 n.4, 713 S.E.2d
287, 291 n.4 (2011) ("To have standing, an individual must generally have a
personal stake in the litigation or qualify as a real party in interest. By contrast, the
At the outset, we find the trial court erred in declining to dismiss the suit on
the ground this was a novel issue. Although our Court has held that "important
questions of novel impression should not be decided on a motion to dismiss," this
general rule does not apply when the determinative facts are not in dispute. See
Unisys Corp. v. S. Carolina Budget & Control Bd. Div. of Gen. Servs. Info. Tech.
Mgmt. Office, 346 S.C. 158, 165, 551 S.E.2d 263, 267 (2001). Where, as here, the
question is one of simple statutory construction, a trial court should not deny a
meritorious motion merely because the question is one of first impression.
Our focus in statutory construction is ascertaining the intent of the
legislature, and we turn first to the text of a statute as the best evidence of
legislative will. Horry Tel. Co-op., Inc. v. City of Georgetown, 408 S.C. 348, 353,
759 S.E.2d 132, 134 (2014). Therefore, questions of whether the legislature
intended to create a private cause of action should be resolved by the language of
the statute. 16 Jade St., LLC v. R. Design Const. Co., 405 S.C. 384, 389, 747
S.E.2d 770, 773 (2013). "When a statute does not specifically create a private
cause of action, one can be implied only if the legislation was enacted for the
special benefit of a private party." Doe v. Marion, 373 S.C. 390, 397, 645 S.E.2d
245, 248 (2007). Generally, "a statute which does not purport to establish a civil
liability, but merely makes provision to secure the safety or welfare of the public as
an entity is not subject to a construction establishing civil liability." Whitworth v.
Fast Fare Markets of S.C. Inc., 289 S.C. 418, 420 388, S.E.2d 155, 156 (1985)
(quoting 73 Am. Jur. 2d, Statutes §432 (1974)).
Section 30-9-30(B)(1)-(2) provides:
(1) If a person presents a conveyance, mortgage, judgment, lien,
contract, or other document to the clerk of court or the register of
deeds for filing or recording, the clerk of court or the register of deeds
may refuse to accept the document for filing if he reasonably believes
that the document is materially false or fraudulent or is a sham legal
process. Within thirty days of a written notice of such refusal, the
determination of whether a party has a private right of action under a particular
statute is merely a matter of legislative intent.") (Hearn, J., concurring in part and
dissenting in part) (internal citations omitted). Respondents cannot recast
Petitioners' appeal as a question of standing, and we therefore address the
challenge actually asserted by Petitioners—whether the statute invoked by
Respondents permits them to bring this action.
person presenting the document may commence a suit in a state court
of competent jurisdiction requiring the clerk of court or the register of
deeds to accept the document for filing.
(2) If the clerk of court or the register of deeds reasonably believes
that a conveyance, mortgage, judgment, lien, contract, or other
document is materially false or fraudulent, or is a sham legal process,
the clerk of court or the register of deeds may remove the document
from the public records after giving thirty days' written notice to the
person on whose behalf the document was filed at the return address
provided in the document. Within thirty days written notice of the
proposed removal, the person providing the notice3 may commence a
suit in a state court of competent jurisdiction preventing the clerk of
court or the register of deeds from removing the document.
(emphasis added). Respondents suggest that because section 30-9-30 allows the
register of deeds to reject and remove fraudulent documents, by implication, the
statute provides Respondents "the power to commence litigation to remediate the
record and ask guidance from this Court."
Although a statute need not expressly create a cause of action, we do not
agree the language of section 30-9-30(B) can be expanded in the manner
Respondents propose. Our rules of construction allow this Court to infer a cause of
action "only if the legislation was enacted for the special benefit of a private party."
Doe v. Marion, 373 S.C. at 397, 645 S.E.2d at 248 (emphasis added). Here,
Respondents ask the Court to imply a right of action to government officials who
are not expressly entitled to some special benefit under the statute; rather, the
statute merely offers guidance as to how they should carry out their job duties. If
anything, the language clearly acknowledges that it is incumbent on Respondents
to accept and record appropriate filings and any dereliction in that duty is
actionable by the party who filed the document.4 Contrary to Respondents'
3
The parties agreed at oral argument that the use of the phrase "the person
providing the notice"—which would be the clerk or register of deeds—is a
typographical error and should be a reference to the person on whose behalf the
document was filed.
4
For this reason, we similarly reject Respondents' argument they are entitled to
declaratory relief under the Uniform Declaratory Judgment Act, Section 15-53-10
to -140 (2005). The purpose behind the Act is to "provide for declaratory
assertion, it is the "person presenting the document" who is entitled to "commence
a suit in a state court" to require the clerk of court or register of deeds to accept a
document for filing or to prevent him or her from removing a document. S.C.
Code Ann. § 30-9-30(B)(1)–(2). When the legislature delineated who would be
able to bring a suit pursuant to section 30-9-30(B), it chose not to afford that right
to government officials. We decline to imply language into a deliberate silence
because to do so would be to rewrite the statute.
Additionally, the statute already provides a remedy to government officials
by allowing them to remove or reject any fraudulent records; by its express
language a judicial blessing or directive is not required (and thus, not permitted) in
performance of this executive function. Nevertheless, Respondents complain
"[t]he tools provided were not sufficient to preserve the integrity of the public
record from fraudulent and pervasive effects of a shadow recording system which
would go undetected until substantial harm had been done." However laudable the
interest in protecting the public index may be, our limited role here is discerning
legislative intent from the statutory text. If Respondents are dissatisfied with the
powers the legislature has outlined for them, that should be taken up with the
General Assembly. It is not the province of this Court to legislate or imply
remedies not specified by the legislature.5
judgments without awaiting a breach of existing rights." Sunset Cay, LLC v. City
of Folly Beach, 357 S.C. 414, 423, 593 S.E.2d 462, 466 (2004). Here, none of
Respondents' legal rights are being or will be abridged.
5
Respondents also argue that South Carolina Court Administration recommended
filing a lawsuit as a means of ferreting out fraudulent documents, relying on a court
administration memorandum that states "if a clerk of court or register of deeds is
not clear as to whether the document is fraudulent, it should be accepted for filing
and subject to review by the court." Memorandum from Rosalyn Frierson,
Director of Court Administration to Clerks of Court, Registers of Deed and
Masters-In-Equity (August 25, 2010). From this language, Respondents claim they
are entitled to file this lawsuit. We disagree. This memorandum does not have the
force of law. Moreover, while we do not agree with Respondents that it intimates
this lawsuit is proper, to the extent it might be read that way, it conflicts with the
clear language of the statute and is therefore not controlling.
CONCLUSION
Based on the foregoing, we find Respondents have failed to state a claim and
therefore reverse the trial court's denial of Petitioners' motion to dismiss.
Acting Justices Aphrodite K. Konduros, John D. Geathers, William H. Seals
and Tanya A. Gee, concur.