Supreme Court Seal
Supreme Court Seal
South Carolina
Judicial Department
2004-UP-157 - BB&T v. Pickens


In The Court of Appeals

Branch Banking and Trust Company,        Appellant,


Wilson L. Pickens,        Respondent.

Appeal From Florence County
B. Hicks Harwell, Jr., Circuit Court Judge

Unpublished Opinion No. 2004-UP-157
Submitted February 9, 2004 – Filed March 10, 2004


John William Ray, of Greenville, for appellant.

Wilson L. Pickens, of Florence, for respondent.

PER CURIAM: Branch Banking and Trust Company (“BB&T”) appeals an order of the Circuit Court setting aside a default judgment against Wilson L. Pickens (Pickens).  BB&T contends the circuit judge lacked jurisdiction to set aside the judgment.  We agree and vacate the order setting aside the judgment.


In June 1999, Pickens obtained a loan from BB&T to purchase a used 1998 Ford Windstar van.  Under the terms of the loan documents, Pickens was obligated to repay BB&T (including interest and other finance charges) $29,791.80 over 60 months.  As collateral for the loan, BB&T held a purchase money security interest in the van.

Around August 2000, Pickens stopped making payments on the loan.  BB&T subsequently repossessed the van and sold it, applying the proceeds of the sale to the amount due on the loan.  Because the proceeds from the sale of the van did not cover the entire amount Pickens owed BB&T, it commenced the present action seeking a judgment against Pickens for $12,844.37, the outstanding balance due on the loan at the time the complaint was filed.  BB&T also requested interest and attorney’s fees.

Although personally served with the summons and complaint on October 10, 2001, Pickens did not enter responsive pleadings or otherwise respond to BB&T’s complaint.  Accordingly, on November 14, 2001, the trial court entered a default judgment against Pickens for $17,952.60 [1] plus post-judgment interest at the statutory rate.  The judgment also allowed BB&T “leave to foreclose or execute against Property or otherwise enforce its judgment in any manner provided by law.”

According to BB&T, on or about December 17, 2001, Pickens filed a Chapter 7 bankruptcy petition (individual liquidation).  It appears from the record that, during the pendency of his bankruptcy case, Pickens filed a motion with the Bankruptcy Court to avoid BB&T’s “judicial lien” pursuant to 11 U.S.C. § 522(f).  The motion lists “bankrupt’s truck” as the type of property liened and “1999” as the date of the lien.  The bankruptcy judge denied Pickens’ motion for failure to comply with SC LBR 9014-2 (Local Rule) on December 21, 2001. [2]  The bankruptcy court ultimately granted Pickens a discharge in April 2002. [3]  

On June 14, 2002, the trial court entered an order setting aside the November 14, 2001 judgment against Pickens.  According to BB&T’s brief, the trial court entered its order setting aside the judgment sua sponte. The order states “[u] pon reviewing this case it has come to the attention of the court that defendant did file an answer to the complaint within the time provided by the South Carolina Rules of Civil Procedure.”  BB&T objected after receipt of notice of the order.  The trial court then allowed Pickens to respond.  By letter addressed to the trial court, Pickens stated: “In response to letter I was sent concerning my case with regards to BB&T. That debt was listed and discharg[ed] in my bankruptcy.  And my bankruptcy case was discharged on April 22, 2002.”

Apparently, the trial court took no further action to modify or amend its order setting aside judgment (nor did it expressly decline to do so).  BB&T now appeals the order setting aside judgment.


BB&T appeals the trial court’s order setting aside the judgment against Pickens, arguing the lower court lacked subject matter jurisdiction to set aside the November 14, 2001 order.  We agree.

The prerogative of a circuit judge to sua sponte alter, amend, or vacate his previous judgments and orders is significantly restricted.  Under the South Carolina Rules of Civil Procedure regarding post-trial relief from a trial court’s orders, the trial court retains jurisdiction to reconsider or change its previous rulings for a limited time—generally for ten days after entry of judgment, or if upon motion of party, ten days after the party received written notice of the order.  See Rule 52(b), SCRCP (providing that motion to amend findings must be made within ten days of entry or receipt of judgment); Rule 59(e), SCRCP (providing that a motion to alter or amend judgment must be made within ten days of entry or receipt of judgment).

This court confronted a similar question in Ness v. Eckerd Corp., 350 S.C. 399, 566 S.E.2d 193 (Ct. App. 2002).  In Ness, the trial judge sua sponte vacated his prior order denying the defendant’s motion to set aside a default judgment. Id. at 401, 566 S.E.2d at 195.  On appeal, this court held the trial judge lacked jurisdiction to vacate his previous order where the modification was not made pursuant to a motion to alter or amend the court’s decision, but on the judge’s own initiative, and the modification was made more than ten days after the initial order.  Id. at 403, 566 S.E.2d at 195. 

In the present case, as in Ness, the trial judge’s order setting aside the default judgment was entered on the court’s own initiative, not as requested in a motion pursuant to Rule 59(e) or other applicable rule, and well outside the ten day period generally allowed under the rules.  The trial judge therefore lacked jurisdiction to set aside his original order.

Additionally, we note that the appellant devotes a significant portion of its argument on appeal to the putative impact on this case of the bankruptcy proceedings involving Pickens.  We find this has little bearing on our consideration of the case.  Although the debt emanating from the  trial court’s order of November 14, 2001 may have been discharged by the bankruptcy court, the record before us contains no proof that has occurred.  Moreover, there is no evidence in the record indicating the trial court lacked subject matter jurisdiction to enter the original default judgment due to the effect of the automatic stay that obtains under 11 U.S.C. § 362 when a bankruptcy petition is filed.  Regardless, it does not appear from the face of the trial court’s order setting aside the original judgment that the outcome of the bankruptcy case prompted or controlled its decision.


Because the trial court lacked jurisdiction to set aside its order of November 14, 2002, its order of June 14, 2002 is therefore vacated.  The status of BB&T’s debt emanating from the trial court’s order of November 14, 2001, is a matter to be determined by the bankruptcy court.


HUFF and STILWELL, JJ., and CURETON, AJ., concur.

[1] This figure includes the $12,844.37 account balance plus pre-judgment interest of $2,673.23, attorney’s fees of $2,300, and costs of $135.

[2] We would note that the record reflects that BB&T exercised its lien rights prior to September 17, 2001, repossessed the van and sold it. These actions appear to have occurred prior to the bankruptcy filing and thus the  lien avoidance motion, as it pertains to the collateral, may have been ineffective in any event.

[3] The record before this Court does not contain a listing of debts sought to be discharged, nor does it contain documentation of the precise date Pickens filed for bankruptcy.  It should be noted, however, that under 11 U.S.C. § 727(b), a Chapter 7 discharge covers all prepetition debts unless excluded under § 523 of the Code.