U.S. Bank Trust v. Austin Lowery

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

U.S. Bank Trust, N.A. as Trustee for LSF10 Master
Participation Trust, Respondent,

v.

Austin A. Lowery a/k/a Austin Lowery a/k/a Austin
Allen Lowery a/k/a Allen Lowery, individually; Austin
A. Lowery a/k/a Austin Lowery a/k/a Austin Allen
Lowery a/k/a Allen Lowery, individually, and as Heir of
Devisee of the Estate of Lisa D. Lowery, Deceased;
South Carolina Department of Revenue; The United
States of America acting by and through its agency,
Department of the Treasury - Internal Revenue Service;
and Elizabeth A. Lowery, Defendants,

Of whom Austin A. Lowery a/k/a Austin Lowery a/k/a
Austin Allen Lowery a/k/a Allen Lowery, individually,
and as Heir of Devisee of the Estate of Lisa D. Lowery,
Deceased, is the Appellant.

Appellate Case No. 2022-000393

Appeal From Spartanburg County
Shannon Metz Phillips, Master-in-Equity

Unpublished Opinion No. 2025-UP-339
Submitted September 1, 2025 – Filed October 8, 2025

AFFIRMED
Andrew Sims Radeker, of Radeker Law, P.A., of
Columbia, for Appellant.

James Derrick Jackson, of Tobias G. Ward, Jr., PA, and
Reginald Patrick Corley and Henry Guyton Murrell, both
of Scott and Corley, P.A., all of Columbia, for
Respondent.

PER CURIAM: Austin A. Lowery a/k/a Austin Lowery a/k/a Austin Allen
Lowery a/k/a Allen Lowery, individually, and as heir of devisee of the Estate of
Lisa D. Lowery, deceased, appeals the master-in-equity's order granting partial
summary judgment in favor of U.S. Bank Trust, N.A., as trustee for LSF 10 Master
Participation Trust (U.S. Bank). On appeal, Lowery argues the master erred by (1)
granting partial summary judgment in favor of U.S. Bank as to Lowery's
affirmative defenses of unconscionable conduct, release, res judicata, laches, and
unclean hands and (2) preventing him from cross-examining witnesses at the final
hearing. We affirm pursuant to Rule 220(b), SCACR.

1. As to issue one, viewing the evidence in the light most favorable to Lowery, we
hold the master did not err by granting summary judgment in favor of U.S. Bank.
See Kitchen Planners, LLC v. Friedman, 440 S.C. 456, 459, 892 S.E.2d 297, 299
(2023) (holding summary judgment is proper when there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law);
USAA Prop. & Cas. Ins. Co. v. Clegg, 377 S.C. 643, 653, 661 S.E.2d 791, 796
(2008) ("When reviewing the grant of a summary judgment motion, appellate
courts apply the same standard that governs the trial court under Rule 56(c),
SCRCP, which provides that summary judgment is proper when there is no
genuine issue as to any material fact and the moving party is entitled to judgment
as a matter of law."); Singleton v. Sherer, 377 S.C. 185, 197, 659 S.E.2d 196, 202
(Ct. App. 2008) ("On appeal from an order granting summary judgment, the
appellate court will review all ambiguities, conclusions, and inferences arising in
and from the evidence in a light most favorable to the non-moving party.").
First, we find Lowery failed to establish a genuine issue of material fact as to
whether the mortgage and Note were unconscionable or induced by
unconscionable conduct. See S.C. Code Ann. § 37-5-108(1) (2015) ("With respect
to a transaction that is, gives rise to, or leads the debtor to believe will give rise to,
a consumer credit transaction, if the court as a matter of law finds: . . . the
agreement or transaction to have been unconscionable at the time it was made, or
to have been induced by unconscionable conduct, the court may refuse to enforce
the agreement; or . . . any term or part of the agreement or transaction to have been
unconscionable at the time it was made, the court may refuse to enforce the
agreement, enforce the remainder of the agreement without the unconscionable
term or part, or so limit the application of any unconscionable term or part as to
avoid any unconscionable result and award the consumer any actual damages he
has sustained."); S.C. Code Ann. § 37-5-108(4)(e) (2015) (providing a
non-exclusive list of conduct that courts must consider in determining whether an
agreement was unconscionable at the time it was made or was induced by
unconscionable conduct, including "the fact that the seller, lessor, or lender
knowingly has taken advantage of the inability of the consumer or debtor
reasonably to protect his interests by reason of physical or mental infirmities,
ignorance, illiteracy, inability to understand the language of the agreement, or
similar factors"); Fanning v. Fritz's Pontiac-Cadillac-Buick, Inc., 322 S.C. 399,
403, 472 S.E.2d 242, 245 (1996) ("Unconscionability has been recognized as the
absence of meaningful choice on the part of one party due to one-sided contract
provisions, together with terms which are so oppressive that no reasonable person
would make them and no fair and honest person would accept them."); S.C. Code
Ann. § 37-10-102(a) (2015) ("Whenever the primary purpose of a loan that is
secured in whole or in part by a lien on real estate is for a personal, family or
household purpose: . . . [t]he creditor must ascertain prior to closing the preference
of the borrower as to the legal counsel that is employed to represent the debtor in
all matters of the transaction relating to the closing of the transaction . . . ."); S.C.
Code Ann. § 37-10-105(A) (2015) ("If a creditor violates a provision of this
chapter, the debtor has a cause of action, other than in a class action, to recover
actual damages and also a right in an action, other than in a class action, to recover
from the person violating this chapter a penalty in an amount determined by the
court of not less than one thousand five hundred dollars and not more than seven
thousand five hundred dollars."); Matrix Fin. Servs. Corp. v. Frazer, 394 S.C. 134,
138, 714 S.E.2d 532, 534 (2011) ("All real estate and mortgage loan closings must
be supervised by an attorney."); id. at 139, 714 S.E.2d at 534 ("Performing a title
search, preparing title and loan documents, and closing a loan without the
supervision of an attorney constitutes the unauthorized practice of law."); id. at
140, 714 S.E.2d at 535 (holding "a lender may not enjoy the benefit of equitable
remedies when that lender failed to have attorney supervision during the loan
process as required by our law" and prospectively applying this holding "to all
filing dates after the issuance of this opinion"); BAC Home Loan Servicing, L.P. v.
Kinder, 398 S.C. 619, 624, 731 S.E.2d 547, 550 (2012) (clarifying the date
referenced in Matrix is the date "the document a party seeks to enforce was filed");
U.S. Bank Nat'l Ass'n as Tr. to U.S. Bank Tr. Nat'l Ass'n v. Mack, 445 S.C. 103,
110, 912 S.E.2d 236, 239 (2025) ("Matrix bars a lender from 'the benefit of
equitable remedies when that lender failed to have attorney supervision during the
loan process as required by our law,' but only after the effective date of that
opinion." (quoting 394 S.C. at 140, 714 S.E.2d at 535)); Munoz v. Green Tree Fin.
Corp., 343 S.C. 531, 541, 542 S.E.2d 360, 365 (2001) ("[A] person who can read is
bound to read an agreement before signing it."); Town of Hollywood v. Floyd, 403
S.C. 466, 477, 744 S.E.2d 161, 166 (2013) ("[I]t is not sufficient for a party to
create an inference that is not reasonable or an issue of fact that is not genuine.");
Germann v. N.Y. Life Ins. Co., 286 S.C. 34, 39, 331 S.E.2d 385, 388 (Ct. App.
1985) ("A conclusory statement as to the ultimate issue in a case is not sufficient to
create a genuine issue of fact for purposes of resisting summary judgment.").

Second, we find Lowery failed to establish a genuine issue of material fact as to
whether the release of the first mortgage also released the second mortgage. See
Resol. Tr. Corp. v. Eagle Lake & Golf Condominiums, 310 S.C. 473, 476, 427
S.E.2d 646, 648 (1993) ("A mortgage is a lien on real property."); Floyd, 403 S.C.
at 477, 744 S.E.2d at 166 ("[I]t is not sufficient for a party to create an inference
that is not reasonable or an issue of fact that is not genuine."); Germann, 286 S.C.
at 39, 331 S.E.2d at 388 ("A conclusory statement as to the ultimate issue in a case
is not sufficient to create a genuine issue of fact for purposes of resisting summary
judgment."); S.C. Code Ann. § 15-3-520(a) (2005) (providing the statute of
limitations in an "action upon . . . [a] contract in writing secured by a mortgage of
real property" is twenty years).

Third, we find Lowery failed to establish a genuine issue of material fact as to
whether U.S. Bank's foreclosure action was barred by the doctrine of res judicata.
See S.C. Pub. Int. Found. v. Greenville County, 401 S.C. 377, 385, 737 S.E.2d 502,
506 (Ct. App. 2013) ("Res judicata bars subsequent actions by the same parties
when the claims arise out of the same transaction or occurrence that was the
subject of a prior action between those parties." (quoting Judy v. Judy, 393 S.C.
160, 172, 712 S.E.2d 408, 414 (2011))); id. at 393, 737 S.E.2d at 506 ("Under the
doctrine of res judicata, a litigant is barred from raising any issues which were
adjudicated in the former suit and any issues which might have been raised in the
former suit." (quoting Judy, at 160, 712 S.E.2d at 414)); Plum Creek Dev. Co. v.
City of Conway, 334 S.C. 30, 34, 512 S.E.2d 106, 109 (1999) ("To establish res
judicata, the defendant must prove the following three elements: (1) identity of the
parties; (2) identity of the subject matter; and (3) adjudication of the issue in the
former suit."); U.S. Bank Trust Nat'l Ass'n v. Bell, 385 S.C. 364, 377, 684 S.E.2d
199, 206 (Ct. App. 2009) (finding when the mortgagors missed two consecutive
monthly payments, "[t]hese missed payments each constitute[d] a default by the
[mortgagors]"); id. at 377 n.11, 684 S.E.2d at 206 n.11 (noting the mortgagors'
missed "payments each independently establish[ed] a default" and that "[o]nce
default occur[ed] . . . the balance owed on the note [was] accelerated, and [the
mortgagee was] entitled to foreclose based on that default").

Fourth, we find Lowery failed to establish a genuine issue of material of fact as to
whether laches barred U.S. Bank's foreclosure action. See Emery v. Smith, 361
S.C. 207, 215, 603 S.E.2d 598, 602 (Ct. App. 2004) ("Laches is neglect for an
unreasonable and unexplained length of time, under circumstances affording
opportunity for diligence, to do what in law should have been done."); id. ("Laches
is an equitable doctrine, which arises upon the failure to assert a known right."); id.
("The party seeking to establish laches must show (1) delay, (2) unreasonable
delay, and (3) prejudice."); Twelfth RMA Partners, L.P. v. Nat'l Safe Corp., 335
S.C. 635, 641, 518 S.E.2d 44, 47 (Ct. App. 1999) ("Laches within the period of the
statute of limitations is no defense at law."); § 15-3-520(a) (providing the statute of
limitations in an "action upon . . . [a] contract in writing secured by a mortgage of
real property" is twenty years).

Lastly, we find Lowery failed to establish a genuine issue of material fact as to
whether the doctrine of unclean hands barred U.S. Bank's foreclosure action. See
Straight v. Goss, 383 S.C. 180, 206, 678 S.E.2d 443, 457 (Ct. App. 2009) ("The
doctrine of unclean hands precludes a plaintiff from recovering in equity if he
acted unfairly in a matter that is the subject of the litigation to the prejudice of the
defendant." (quoting First Union Nat'l Bank of S.C. v. Soden, 333 S.C. 554, 568,
511 S.E.2d 372, 379 (Ct. App. 1998))); id. at 207, 678 S.E.2d at 457-58 ("He who
comes into equity must come with clean hands. It is far more than a mere banality.
It is a self-imposed ordinance that closes the door of the court of equity to one
tainted with inequitableness or bad faith relative to the matter in which he seeks
relief." (quoting Emery, 361 S.C. at 220, 603 S.E.2d at 605)); Williams v. Jeffcoat,
444 S.C. 224, 236, 906 S.E.2d 588, 594 (2024) ("For a party to succeed on an
unclean hands defense, the conduct of the person sought to be barred from
recovery under the doctrine 'need not necessarily have been of such a nature as to
be punishable as a crime or as to justify legal proceedings of any character.'"
(quoting 27A Am. Jur. 2d Equity § 21 (2019))); id. at 236, 906 S.E.2d at 594-95
("'[A]ny willful act concerning the cause of action that rightfully can be said to
transgress equitable standards of conduct is sufficient' to establish the defense."
(quoting 27A Am. Jur. 2d Equity § 21)); id. at 236, 906 S.E.2d at 595 ("While
mere stupidity, negligence, ignorance, or inappropriateness are insufficient to
invoke the defense, a litigant's hands are rendered unclean by conduct that is
'condemned and pronounced wrongful by honest and fair-minded people,' or by
conduct that is inequitable, unfair, dishonest, fraudulent, unconscionable, in bad
faith, willful, grossly negligent, unrighteous, unconscientious, oppressive, or
reprehensible." (quoting 27A Am. Jur. 2d Equity § 21)); Mack, 445 S.C. at 110,
912 S.E.2d at 239 ("Matrix bars a lender from 'the benefit of equitable remedies
when that lender failed to have attorney supervision during the loan process as
required by our law,' but only after the effective date of that opinion." (quoting 394
S.C. at 140, 714 S.E.2d at 535)); Munoz, 343 S.C. at 541, 542 S.E.2d at 365 ("[A]
person who can read is bound to read an agreement before signing it."); Floyd, 403
S.C. at 477, 744 S.E.2d at 166 ("[I]t is not sufficient for a party to create an
inference that is not reasonable or an issue of fact that is not genuine."); Germann,
286 S.C. at 39, 331 S.E.2d at 388 ("A conclusory statement as to the ultimate issue
in a case is not sufficient to create a genuine issue of fact for purposes of resisting
summary judgment."); § 37-10-102(a) ("Whenever the primary purpose of a loan
that is secured in whole or in part by a lien on real estate is for a personal, family
or household purpose: . . . [t]he creditor must ascertain prior to closing the
preference of the borrower as to the legal counsel that is employed to represent the
debtor in all matters of the transaction relating to the closing of the
transaction . . . ."); § 37-10-105(A) ("If a creditor violates a provision of this
chapter, the debtor has a cause of action, other than in a class action, to recover
actual damages and also a right in an action, other than in a class action, to recover
from the person violating this chapter a penalty in an amount determined by the
court of not less than one thousand five hundred dollars and not more than seven
thousand five hundred dollars.").

2. As to issue two, we hold Lowery's argument concerning the master's alleged
violation of his right to cross-examine witnesses is without merit. The master's
February 23, 2022 order found the only issues remaining were the amount of debt
and Lowery's setoff and/or recoupment and ordered U.S. Bank to file and serve
affidavits regarding the amount of indebtedness under the foreclosure at least three
days prior to a final hearing. The master did not order that Lowery was prohibited
from cross-examining witnesses at the final hearing.

AFFIRMED.1

WILLIAMS, C.J., and THOMAS and CURTIS, JJ., concur.

1
We decide this case without oral argument pursuant to Rule 215, SCACR.