Professional Documents
Culture Documents
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:
PER CURIAM:
Mark A. Henrikson (plaintiff) appeals the district courts
order granting First Union National Bank, et al. (defendants)
summary judgment on plaintiffs breach of contract, interference
with economic relationships, conversion, trespass, and violation of
South Carolina Unfair Trade Practices Act claims.
We affirm in
But it granted
review
judgment.
novo
district
courts
grant
of
summary
de
court
must
all
reasonable
inferences
in
his
favor.
II.
The first issue is whether plaintiff complied with South
Carolinas three-year statute of limitations under S.C. Code Ann.
account is current.
(Def.s Ex. H, 12/4/96.)
2
15-3-530 (1997).
second
memorialized
issue
the
is
whether
September
oral
the
forbearance
agreement
between
agreement
Symons
and
an
oral
agreement
between
plaintiff
and
defendant
in
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
of
the
real
property,
the
payment
terms
and
dates,
by
their
forbearance
agreement,
was
to
prevent
Examination of the
Plaintiff
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.
Yes.
Even so, the case held that the oral agreement to surrender
Indeed, Mrs.
Uh-huh.
Q.
Yes?
A.
Yes.
Q.
A.
Yes.
Q.
A.
Correct.9
The only
question
payments
as
to
part
performance
is
whether
the
six
Townsley was obviously that the September payments were not under
the
forbearance
agreement,
but
there
is
no
dispute
that
the
there was no authority for The Money Store to enter into the
forbearance agreement since the property had been sold and it, in
Br., p.15.
10
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).
deposition follows:
Q: And when did the sale occur?
A: 10-25-96
...
Q: REO, whats 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.
12
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.
The summary
13
_______
Date
12-4-96
Date
as agent for
The Money Store, Inc.
15