STATE OF SOUTH CAROLINA
COUNTY OF RICHLAND
COURT OF COMMON PLEAS
The following case arises from a judgment enforcement (Supplemental) proceeding, in which Glen K. LaConey attempted execution of a judgment against Xavier Troy Smith. The trial court dismissed the proceedings in favor of Xavier Troy Smith. LaConey filed his Notice of Motion and Motion to Alter or Amend Judgment. Special Referee Corbett denied the motion. LaConey appealed.
In 2002, realtor, Lori Pelzer and her brother, realtor, Xavier Troy Smith, defrauded their great-aunt, Lynn G. Yacoubian, by promising to invest Yacoubian's money in their real estate company, Home Assist Real Estate, LLC. Smith convinced Yacoubian to purchase distressed homes as investments. Instead, Smith and Lori Pelzer converted Yacoubian's money for their personal use. Smith left Yacoubian with two defaulted mortgages. [There are state and federal tax liens, filed against Xavier Troy Smith, in the Richland County Register of Deeds Office, totaling about $60,000.00! Additionally, on information and belief, Xavier Troy Smith was previously incarcerated as an inmate at the South Carolina Department of Corrections!]
Lynn G. Yacoubian sued and was awarded a default judgment against Home Assist Real Estate, LLC in the amount of $26,500.00; and against Xavier Troy Smith for conversion and breach of trust in the amount of $95,743.69 on February 28, 2005. The default judgment was not joint and several. Yacoubian subsequently assigned the default judgment to LaConey for "valuable consideration" and duly filed the assignment on September 23, 2005. The assignment contained no recital of the specific nature of the consideration. Additionally, the assignment recited the amount of $26,500.00 entered against co-defendant Home Assist Real Estate, LLC and erroneously omitted any recital of the amount of $95,743.69 entered against co-defendant, Xavier Troy Smith as a scrivener's error.
LaConey moved to enforce the judgment through supplementary proceedings against Smith. The matter was referred to James J. Corbett, Esq. to serve as Special Referee by Order of Reference filed by the Honorable L. Casey Manning on April 3, 2013.
Special Referee Corbett filed his Order and Rule to Show Cause on August 27, 2013 directing Smith to appear for supplementary proceedings on September 13, 2013. Subsequently, Smith, represented by his counsel, Robert L. Reibold, Esq., submitted to Special Referee Corbett and to LaConey a Motion for Relief from Default Judgment, pursuant to Rule 60(b)(4), SCRCP, supported by his affidavit, to vacate the default judgment entered against him; alleging that he was not served with the summons and complaint in the underlying suit and that the default judgment is void for lack of personal jurisdiction. Smith submitted another Motion to Dismiss Supplemental Proceedings; alleging that because the South Carolina Supreme Court held that LaConey had engaged in the unauthorized practice of law previously, he must be doing so in this case also. Mysteriously, neither of the motions or any of Smith's affidavits were filed in the court record. Why?
Special Referee Corbett excused Smith from appearing for supplementary proceedings and heard arguments on Smith's motion in lieu of supplementary proceedings. Special Referee Corbett issued no Order amending the nature of the proceeding. Additionally, during the September 13th hearing, no evidence was submitted in support of Smith's affidavits that he was not or could not have been served with the Summons and Complaint, or otherwise noticed of any hearings in the matter.
On November 18, 2013, Special Referee Corbett filed his Order directing the parties to conduct limited discovery for a period of forty-five (45) days in support of their positions. Smith proceeded to conduct a deposition of Lynn G. Yacoubian on December 30, 2013. LaConey elected not to attend the deposition. LaConey was not served with any other discovery requests. LaConey did serve Smith with a Request for Admissions. Smith's responses included an admission that he was unable to recall any of the events he attested to in his affidavits on the basis that LaConey sought information about events "at a specific hour on a specific date over 10 years ago". LaConey duly filed the originals of his Request for Admissions and his Discovery Status Report and served copies of same upon Reibold and upon Special Referee Corbett.
On March 4, 2013, Smith did file a Supplemental Motion to Dismiss, in which Smith raised as a sole defense that because LaConey failed to pay any money for the assignment of judgment, that LaConey is engaged in the unauthorized practice of law. Mysteriously, the Supplemental Motion to Dismiss contained no complaint that Smith was not served with the Summons and Complaint, and that Smith had no knowledge of the default judgment.
By his Order Dismissing the Supplemental Proceedings, filed May 8, 2014, Special Referee Corbett asserted that a hearing was held on March 13, 2014, during which Smith purportedly presented copies of a letter and a magazine addressed to him evidencing that the Bob Capes Realty office, where he was employed, closed and relocated in early 2004; thereby, precluding him from being served with notice of a damages hearing. However, no such hearing or evidence is supported by the court record. "[A] party who controverts the validity of a judgment generally bears the burden of showing such invalidity by proper evidence." 47 Am. Jur. 2d Judgments Sec. 800, at 378-79 (2006).
LaConey relies on the Affidavit of Service, duly filed by Belec's Process Service on September 16, 2003, which recites in pertinent part, that the process server, Gail Belec, served the Summons and Complaint, and other documents "on the Defendant by delivering to Xavier Troy Smith personally" at 7335 Saint Andrews Road in Columbia, South Carolina. The Affidavit of Service notes the date and time of service as September 15, 2003 at 12:26 p.m., respectively. Smith swore in his affidavits, which were not filed in the court record, that he was in fact employed at Bob Capes Realty office on the date and at the address of purported service; however, that he was "meeting with clients and viewing homes" at the time of purported service. Smith's claim of unavailability at the time of purported service is unsupported by any evidence in the record. Additionally, Smith swore that the Bob Capes Realty office, at the address of purported service, closed and relocated in early 2004, before he could be served by certified mail with notice of a damages hearing. Again, Smith's claim is unsupported by any evidence in the record.
A review of public records in the Richland County Office of the Register of Deeds disclosed that Smith's wife, Paulette Parker-Smith, purchased a homestead at 203 Silverwood Trail in Richland County, South Carolina solely in her name in 2010, after entry of the default judgment in 2005. LaConey contends that the nature and timing of the transaction suggests that Smith had knowledge of the default judgment on the basis that Smith withheld his name from the property deed to defeat execution against the property, or otherwise, that the default judgment adversely affected Smith's credit; thereby, precluding Smith's property purchase jointly with his wife.
In his Order of Dismissal, Special Referee Corbett's assertion that Lynn Yacoubian testified in her deposition that the only consideration she received in exchange for the assignment of judgment was the promise to receive a percentage of the proceeds LaConey recovered from the judgment is contradicted by Yacoubian's deposition. Contrary to Special Referee Corbett's assertion, Yacoubian's deposition reflects that Yacoubian testified that she was unable to recall any contingency arrangement between her and LaConey, and that while she would have enjoyed receiving money in exchange for the assignment, she sought greater satisfaction from the prospect that Smith would "pay somebody", even if he would not pay her.
Special Referee Corbett omitted that Yacoubian further testified that she was so angry at Smith that the judgment had become a source of emotional distress to her and that "if he could get it he was welcome to it, Mr. LaConey". Special Referee Corbett declined to adopt "dislike and satisfaction" (whatever that means) as valuable consideration; thereby, denying Yacoubian her right to dispose of her property as she pleases and denying LaConey his right to receive and enjoy the property. Special Referee Corbett further omitted that Yacoubian testified that LaConey did not solicit to enforce the judgment on her behalf; rather that their initial encounter was a casual meeting at the courthouse.
Special Referee Corbett further omitted that Yacoubian testified that she failed to maintain contact with LaConey after the assignment, which suggests that there was no continuing business relationship between them, and that Yacoubian had no expectation of future payment from LaConey.
Smith has presented no law that precludes Yacoubian from voluntarily assigning the judgment to LaConey, without receiving money in exchange for it. While it may not be recommended, it certainly was her business. And because LaConey now owns the judgment, nothing precludes LaConey from sharing some of the proceeds with Yacoubian, if he pleases, as long as there was no prior agreement that LaConey would act as Yacoubian's attorney in fact.
In his Order, Special Referee Corbett's assertion that "LaConey admitted" and that both "LaConey and Yacoubian testified each was to receive a percentage of any recovery" is unsupported by any evidence in the record.
Special Referee Corbett asserted that the assignment of judgment is void against Smith on the basis that the assignment recited only the amount entered against the co-defendant, Home Assist Real Estate, LLC and omitted any recital of the amount of the judgment against Smith. However, Special Referee Corbett omitted that Yacoubian testified repeatedly in her deposition that she sought to assign the judgment against "him" (Smith) to LaConey and that she testified that she "assigned everything to Mr. LaConey".
It is contended that in this matter in equity, Special Referee Corbett failed to recognize the assignment as an equitable assignment, requiring no particular form, which, if not cognizable at law, would be recognized and protected in equity. Additionally, any language showing an intent to transfer property interests would be recognized no matter how poorly expressed. Parol and written equitable assignments are of equal validity. See Player v. Player, 240 S.C. 274, 125 S.E.2d 636 (1962), and Troublefield v. Heyward, 111 S.C. 293, 97 S.E.2d. Further, Special Referee Corbett failed to consider the intent of Yacoubian as well as extrinsic circumstances that would be admissible to aid in interpreting the written instrument. See Lawrence v. Burnett, 116 S.C. 347, 108 S.E. 142 (1921).
Special Referee Corbett did acknowledge in his Order of Dismissal that "Yacoubian did not reserve any rights in the judgment"; therefore, Yacoubian retained no interests that could be represented directly by LaConey.
Special Referee Corbett's assertion that in Roberts v. LaConey , 375 S.C. 97, 650 S.E.2d 474 (2007), the South Carolina Supreme Court held that LaConey was engaged in the unauthorized practice of law based on purported threats made by LaConey to Roberts, constituted the unauthorized practice of law is unsupported by the Supreme Court's ruling. Those matters were not before the Court. (See note 2). Additionally, Special Referee Corbett's assertion that LaConey sent Smith a handwritten letter threatening to turn Smith into the IRS Criminal Division, if he "failed to pay LaConey on the judgment", is unsupported by any evidence in the record. Go to Fraud in the Court!
Special Referee Corbett's blatant and numerous false assertions, and omissions favorable to Smith evinces Special Referee Corbett's bias towards Smith and prejudice against LaConey.
The Petitioner contends that Special Referee Corbett acted in an arbitrary, capricious, and unreasonable manner; and that Special Referee Corbett's ruling has a palpably incorrect or irrational basis. Further, it is obvious that Special Referee Corbett either did not consider, or failed to appreciate the significance of competent, probative evidence.
In an action in equity, the appellate court will disturb the ruling of a special referee when the ruling is wholly unsupported by evidence or controlled by an erroneous conception or application of the law. See Maddux Supply Co. v. Safhi, Inc., 316 S.C. 404, 450 S.E.2d 101, 102 (Ct. App. 1994); T.W. Morton Builders, Inc. v. von Buedingen, 316 S.C. 388, 450 S.E.2d 87, 92 (Ct. App. 1994); Jefferies v. Phillips, 316 S.C. 523, 451 S.E.2d 21, 22-3 (Ct. App. 1994).
Additionally, in an action in equity, th court may find facts in accordance with it's own view of the preponderance of the evidence. See Mi Co. Ltd. v. McLean, 325 S.C. 616, 623, 482 S.E.2d 597, 601 (Ct. App. 1994); Hayne Federal Credit Union v. Bailey, 327 S.C. 242, 248, 489 S.E.2d 472, 475 (1997); Houck v. Rivers, 316 S.C. 414, 418, 450 S.E.2d 106, 109 (Ct. App. 1994); S.C. Federal Savings Bank v. Atlantic Land Title Co., 314 S.C. 292, 442 S.E.2d 630, 631 (Ct. App. 1994).
It appears that Xavier Troy Smith absconded to Conyers, Georgia only days before Special Referee Corbett's Order of Dismissal. Smith is now a realtor with Crown Realty Professionals in Conyers, after abruptly resigning his employment with Aggressive Realty, LLC in Columbia, South Carolina. LaConey will seek Xavier's civil arrest, for absconding from the jurisdiction of the court with intent to defraud a judgment creditor, as allowed by law!
Upon a chance review of the court file on June 10, 2014, LaConey discovered that on May 30, 2014, Robert L. Reibold, counsel for Xavier Troy Smith, had filed a brief in opposition to LaConey's motion to alter or amend judgment. LaConey had not been served with a copy of that brief.
On June 2, 2014, Special Referee Corbett filed his order denying LaConey's motion to alter or amend judgment. On June 12, 2014, LaConey filed his Notice of Appeal and Proof of Service with the South Carolina Supreme Court.
More about Lori Pelzer (containing additional information):
http://loripelzer.blogspot.com
