Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Dabney v. Bank of America N.A.

United States District Court, D. South Carolina, Charleston Division

July 3, 2018

Frank Scott Dabney and Kathryn Harrelle Dabney, Plaintiffs-Appellants,
v.
Bank of America, N.A., Defendant-Appellee.

          ORDER AND OPINION

          Richard Mark United States District Court Judge

         This matter is before the Court on Appellants' appeal from the order of the United States Bankruptcy Court for the District of South Carolina granting Appellee's motion for judgment on the pleadings. For the reasons set forth below, the Court vacates the order of the bankruptcy court and remands this matter for further proceedings.

         I. Background

         On May 11, 2006, Plaintiffs executed delivered to Lendmark Financial Services, Inc. ("Lendmark"), an adjustable rate note in the original principal amount of $304, 000 (the "Note"). The Note provides the following interest rate provisions,

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.
4. INTEREST RATE AND MONTHLY PAYMENT CHANGES.
(A) Change Rates. The interest rate I will pay may change on the first day of June, 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 adjustable interest rate will be based on an Index. The "Index" is the average of interbank offered rates for SIX-MONTH U.S. dollar denominated deposits in the London market (LIBOR) as published in The Wall Street Journal. The most recent Index figure available as of the first business day of the month immediately preceding the month in which the Change Date occurs is called the "Current Index."
If the Index is no longer available, the Note Holder will choose a new index that is based upon comparable information. The Note Holder will give me notice of this choice.
(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 11.000% or less than 8.000%. Thereafter, my interest rate will never be increased or decreased on any single Change Date by more than 1.000 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 14.000%.

         Executed simultaneously with the Note was a mortgage of property located at 1844 Chelwood Circle, Charleston, South Carolina ("Mortgage") and an adjustable rate rider ("Rider"). The Rider expressly amends the Mortgage. (Dkt. No. 2-1 at 40.) It has the following interest rate provisions,

A. INTEREST RATE AND MONTHLY PAYMENT CHANGES.
The Note provides for an initial interest rate of 8.00%. The Note provides for changes in the adjustable interest rate and ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.