Deep Keel, LLC v. Atlantic Private Equity Group, LLC

773 S.E.2d 607, 413 S.C. 58, 2015 S.C. App. LEXIS 111
CourtCourt of Appeals of South Carolina
DecidedJune 17, 2015
DocketAppellate Case No. 2013-002281; No. 5320
StatusPublished
Cited by23 cases

This text of 773 S.E.2d 607 (Deep Keel, LLC v. Atlantic Private Equity Group, LLC) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Deep Keel, LLC v. Atlantic Private Equity Group, LLC, 773 S.E.2d 607, 413 S.C. 58, 2015 S.C. App. LEXIS 111 (S.C. Ct. App. 2015).

Opinion

FEW, C.J.

Atlantic Private Equity Group, LLC defaulted on a promissory note personally guaranteed by Terry L. Rohlfing and Jerry T. Caldwell. The master-in-equity ordered foreclosure of the mortgage securing the note and entered a deficiency judgment against Atlantic. On appeal, Atlantic challenges the master’s admission of evidence on authentication and hearsay grounds. We affirm the judgment of foreclosure because we find the loan documents upon which the judgment was based were properly admitted into evidence. However, we reverse the deficiency judgment because the testimony of the amount remaining due on the note was hearsay. In addition, we vacate the master’s finding that Rohlfing and Caldwell were liable on the guaranties because the finding was outside the [63]*63scope of the order of reference. We remand for further proceedings.

I. Facts and Procedural History

On March 27, 2008, Atlantic executed a promissory note to Community First Bank for a commercial loan in the amount of $2,000,000. The note was secured by a mortgage on two parcels of real estate in Beaufort County. Rohlfing and Caldwell executed personal guaranties to ensure payment of the note. When Atlantic defaulted, Community First brought a foreclosure action against Atlantic and breach of guaranty claims against Rohlfing and Caldwell. It sought deficiency judgments against all three. While the action was pending, Community First merged with Crescent Bank and became known as CresCom Bank, which later assigned the loan to the respondent, Deep Keel, LLC.

Atlantic, Rohlfing, and Caldwell filed a joint answer in which they admitted Community First made a loan to Atlantic, the loan was secured by a mortgage, and “not all monthly payments have been timely made.” However, they denied Deep Keel was entitled to foreclosure or a deficiency judgment.

The circuit court referred the case to the master “for the purposes of adjudicating the foreclosure action.” The order of reference provided that upon resolution “of the foreclosure action, this case is to be returned to the Circuit Court for final hearing and disposition as to any issues triable by jury against [Rohlfing and Caldwell].” At the beginning of the foreclosure hearing, the master acknowledged Deep Keel’s breach of guaranty claims against Rohlfing and Caldwell “would be heard in a separate action.”

To support its claim for foreclosure, Deep Keel offered into evidence six documents (the “loan documents”) through its sole member — Scott Bynum — to establish the existence and terms of the loan. Atlantic objected, arguing the loan documents were inadmissible because (1) Deep Keel failed to authenticate them and (2) they contained hearsay to which no exception applied. The master overruled the objections and admitted the loan documents.

[64]*64Deep Keel attempted to establish the amount remaining due on the loan through Bynum’s testimony. The testimony was based on documentation Bynum received from CresCom Bank at the time the loan was assigned, but Deep Keel did not offer those documents into evidence. Atlantic objected on hearsay grounds, and the master overruled its objection.

The master ordered foreclosure of the mortgage, found there was $1,655,027 remaining due on the note, and granted Deep Keel a deficiency judgment against Atlantic.1 Although the master returned the case to the circuit court as the order of reference directed, the foreclosure order included a finding that Rohlfing and Caldwell “executed and delivered ... personal Guaranties” and were “liable for a limited principal amount of $350,000.”

II. Admission of Loan Documents

Atlantic disputes the admissibility of the loan documents, which include (1) a promissory note; (2) a mortgage; (3) an assignment of leases, rents, and profits;2 (4) a loan modification agreement dated April 2009; (5) a loan modification agreement dated May 2010; and (6) a partial release of mortgage and assignment of leases, rents, and profits. Atlantic argues Deep Keel failed to properly authenticate these loan documents, and they contained inadmissible hearsay. We address these two arguments separately.

A. Authentication

A party offering evidence must meet “[t]he requirement of authentication ... as a condition precedent to admissibility.” Rule 901(a), SCRE. The authentication requirement “is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Id. “[T]he burden to authenticate ... is not high” and requires only that the proponent “offer[ ] a satisfactory foundation from which the jury could reasonably find that the evidence is authentic.” [65]*65United States v. Hassan, 742 F.3d 104, 133 (4th Cir.2014) (decided under Fed.R.Evid. 901(a)3); see also 29A Am. Jur. 2d Evidence § 1045 (2008) (“The authentication requirement does not demand that the proponent of ... evidence conclusively demonstrate [its] genuineness.... ”).

We find Deep Keel offered evidence sufficient to authenticate the loan documents. First, Bynum’s testimony complied with Rule 901(b)(1), SCRE, which provides that evidence may be authenticated by a witness with knowledge who testifies that an item “is what it is claimed to be.” Bynum testified he agreed to purchase a note from CresCom Bank, he examined the loan documents while negotiating the agreement, and the loan documents offered in evidence were the ones he examined and later received pursuant to this transaction. This testimony authenticated the loan documents because it was sufficient to support a finding that they were the documents Deep Keel claimed them to be — the note, mortgage, and assignment of leases executed by Atlantic in 2008 when it borrowed the money from Community First; the two loan modification agreements “modifying] the original note”; and a partial release of the security interests granted through the mortgage and assignment of leases. See Rule 901(a).

Atlantic argues, however, Bynum was not a witness with knowledge under Rule 901(b)(1) because he did not know “when, how, or by whom the documents were prepared, how they came to be in the possession of CresCom Bank, or how they were maintained by that bank.” The authentication requirement does not demand this degree of proof. See Hassan, 742 F.3d at 133. Bynum’s testimony demonstrated he had personal knowledge that the loan documents admitted into evidence were the same ones CresCom Bank provided to him when Deep Keel purchased the asset the loan documents represent — the 2008 note, as modified, with security interests. [66]*66This is sufficient evidence to meet the Rule 901(a) requirement of authentication.

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Bluebook (online)
773 S.E.2d 607, 413 S.C. 58, 2015 S.C. App. LEXIS 111, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deep-keel-llc-v-atlantic-private-equity-group-llc-scctapp-2015.