Dabney v. Bank of Am. (In re Dabney)

603 B.R. 555
CourtUnited States Bankruptcy Court, D. South Carolina
DecidedJanuary 15, 2019
DocketC/A No. 13-04227-JW; Adv. Pro. No. 17-80037-JW
StatusPublished

This text of 603 B.R. 555 (Dabney v. Bank of Am. (In re Dabney)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dabney v. Bank of Am. (In re Dabney), 603 B.R. 555 (S.C. 2019).

Opinion

John E. Waites, U.S. Bankruptcy Judge

This matter comes before the Court upon the Motion to Amend the Complaint ("Motion to Amend") filed by Frank Scott Dabney and Kathryn Harrelle Dabney ("Plaintiffs") on August 3, 2018. Bank of New York Mellon ("BNYM") and Shellpoint Mortgage Servicing ("Shellpoint") filed a Brief in Opposition ("Brief") to the Motion to Amended on September 11, 2018. In addition, Specialized Loan Servicing ("SLS") filed an Objection to the Motion to Amend ("Objection") on October 12, 2018. No response to the Motion to Amend was filed by Bank of America, N.A.

*557("Bank").1 The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334.2 The Court makes the following Findings of Fact and Conclusions of Law pursuant to Fed. R. Civ. P. 52, which is made applicable by Fed. R. Bankr. P. 7052.3

FINDINGS OF FACT4

1. On May 11, 2006, Plaintiffs executed and delivered to Lendmark Financial Services, Inc. ("Lendmark") an adjustable rate note ("Note") in the original principal amount of $304,000. The Note is secured by a first mortgage lien ("Mortgage") executed and delivered by Plaintiffs to Lendmark on May 11, 2006. The Mortgage encumbers Plaintiffs' principal residence located at 1844 Chelwood Circle, Charleston, SC 29407 ("Property"). Contemporaneous with the execution of the Note and Mortgage, Plaintiffs executed and delivered to Lendmark an Adjustable Rate Rider ("ARR," and together with the Note and Mortgage, the "Loan").

2. The Note obligated Plaintiffs to make 360 monthly installment payments beginning July 1, 2006, with a maturity date of June 1, 2036.

3. For the first thirty-six months, the Note required monthly payments in the amount of $2,230.64 based on an initial interest rate of 8.000%:

3. PAYMENTS
...
(B) Amount of My Initial Monthly Payments. Each of my initial monthly payments will be in the amount of $2,230.64 . This amount may change.
(C) Monthly Payment Changes. Changes in my monthly payment will reflect changes in the unpaid principal of my loan and in the interest rate I must pay. The Note Holder will determine my new interest rate and the changed amount of my monthly payment in accordance with Section 4 of this Note.

4. Section 4(A) of the Note provides that the interest rate "may" change on the first day of June 2009. The parties dispute whether the Note sets an interest rate floor of 8.000%. Plaintiffs allege that the interest rate should have dropped below 8.000% during the six-month periods after June 2009 when the LIBOR index added to 5.125% totaled less than 8.000% because Section 4(D) of the Note says "[m]y interest rate will never be greater than 14.000%," but it does not mention a minimum rate:

2. INTEREST. Interest will be charged on unpaid principal until the full amount of Principal has been paid. I will pay interest at a yearly rate of 8.000% . The interest rate I will pay may change in accordance with Section 4 of this Note. The interest rate required by this Section 2 and Section 4 of this Note is the rate I will pay both before and after any default as described in Section 7(B) of this Note.
...
4. INTEREST RATE AND MONTHLY PAYMENT CHANGES
(A) Change Dates. The interest rate I will pay may change on the first day of *558June, 2009 and on that day every 6 months thereafter. Each date on which my interest rate could change is called a "Change Date."
(B) The Index. Beginning with the first Change Date, my interest rate will be based on an Index.
...
(C) Calculation of Changes. Before each Change Date, the Note Holder will calculate my new interest rate by adding 5.125 percentage point(s) (5.125% ) to the Current Index. The Note Holder will then round the result of this addition to the nearest one-eighth of one-percentage point (0.125%). Subject to the limits stated in Section 4(D) below, this rounded amount will be my new interest rate until the next Change Date. The Note Holder will then determine the amount of the monthly payment that would be sufficient to repay the unpaid principal that I am expected to owe at the Change Date in full on the Maturity Date at my new interest rate in substantially equal payments. The result of this calculation will be the new amount of my monthly payment.
(D) Limits on Interest Rate Changes. The interest rate I am required to pay at the first Change Date will not be greater than 11.00% or less than 8.00% . Thereafter, my interest rate will never be increased or decreased on any single Change Date by more than 1.00 percentage point(s) (1.000% ) from the rate of interest I have been paying for the preceding 6 months. My interest rate will never be greater than 14.00% .

(emphasis added)

5. Section 4(D) of the Adjustable Rate Rider ("Rider") attached to Plaintiffs' Mortgage contains an additional phrase, which says, "[the] interest rate will never be greater than 14.00% or less than the initial interest rate stated above." Section 4(A) of the Rider defines the initial interest rate: "The Note provides for an initial interest rate of 8.000%." Bank and Former Defendants allege that the Rider therefore sets the parameters for the adjustable interest rate as between 8.000% and 14.000%.

ADDITIONAL COVENANTS. In addition to the covenants and agreements made in the Security Instrument, Borrower and Lender further covenant and agree as follows:
A. INTEREST RATE AND MONTHLY PAYMENT CHANGES.
The Note provides for an initial interest rate of 8.000% . The Note provides for changes in the adjustable interest rate and the monthly payments, as follows:
4. INTEREST RATE AND MONTHLY PAYMENT CHANGES.
(A) Change Dates. The adjustable interest rate I will pay may change on the first day of June, 2009 and on the same day of every 6 month(s) thereafter. Each date on which my interest rate could change is called the "Change Date."
(B) The Index. Beginning with the first Change Date, my adjustable interest rate will be based on an Index.

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Cite This Page — Counsel Stack

Bluebook (online)
603 B.R. 555, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dabney-v-bank-of-am-in-re-dabney-scb-2019.