Order Referring Foreclosure Case is Not Appealable

The South Carolina Court of Appeals held last week that a circuit-court order referring a mortgage foreclosure action to a master-in-equity is not appealable until the master rules on the demand for a jury trial.

In TD Bank v. Farm Hill Associates, No. 2013-UP-118 (S.C. Ct.App. refiled May 29, 2013), the defendants in a mortgage foreclosure action appealed an order that referred the case to a master-in-equity. They argued that the reference denied them their right to a jury trial. The Court disagreed and dismissed the appeal.

The Court acknowledged that an order of reference that denies a party the right to a jury trial is directly appealable. But it held that the rule did not apply because the order of reference allowed the master to rule on the demand for a jury. If the master decided that the parties had a right to a jury, the issues triable to a jury would be returned to the circuit court. Because the master had not yet ruled, the Court held that the order of reference, by itself, did not deny anyone their rights.

TD Bank closely follows Supreme Court precedent. In Williford v. Downs, 265 S.C. 319, 218 S.E.2d 242 (1975), the court held that an order of reference in a mortgage foreclosure action is not directly appealable because the action lies in equity and there is no right to a jury trial in equity actions. See also North Carolina Fed. Savings & Loan Ass’n v. Twin States Dev. Corp., 289 S.C. 480, 347 S.E.2d 97 (1986)(applying Williford).

In applying this law, the Court in TD Bank pointedly noted that the parties may be able to directly appeal a later order f the master denied their demand for a jury trial. Such an appeal would be directly from the master to the Court of Appeals. Rule 203(b)(4), SCACR.

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