Deutsche Bank v. Booms

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

Deutsche Bank National Trust Company as Trustee for
the MLMI Trust Series 2007-MLNI, Respondent,

v.

Rhonda Booms, Appellant.

Appellate Case No. 2013-001185

Appeal From Anderson County
J. Cordell Maddox, Jr., Circuit Court Judge

Unpublished Opinion No. 2015-UP-097
Heard January 7, 2015 – Filed February 25, 2015

AFFIRMED

Charles R. Griffin, Jr., of Anderson, for Appellant.

Robert A. Muckenfuss and J. Curtis Griner, both of
Charlotte, NC, and Elizabeth Marion Zwickert
Timmermans, of Raleigh, NC, all of McGuireWoods
LLP; Harriet Pollitt Wallace, of Rogers Townsend &
Thomas, PC, of Greenville; and Samuel Calvin Waters,
of The Waters Firm, LLC, of Columbia, all for
Respondent.
PER CURIAM: In this foreclosure action, Rhonda Booms contends the circuit
court erred in (1) finding the maximum recovery she was permitted under the
attorney preference statute was a $7,500 setoff of the foreclosure judgment, (2)
failing to find Deutsche Bank National Trust Company ("Deutsche Bank") was
barred from recovery pursuant to the doctrine of unclean hands, (3) granting
Deutsche Bank's motion in limine to exclude testimony regarding any statements
made to Booms by the mortgage servicer, (4) holding neither the note nor the
mortgage were unconscionable, and (5) failing to find Deutsche Bank was not a
holder in due course.1 We affirm pursuant to Rule 220(b), SCACR, and the
following authorities:

1. As to whether the circuit court erred in finding the maximum recovery Booms
was permitted under the attorney preference statute was a $7,500 setoff of the
foreclosure judgment: 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 . . . to recover
actual damages and also a right in an action . . . to recover from the person
violating this chapter a penalty in an amount determined by the court of . . . not
more than seven thousand five hundred dollars."); Smith v. Wells, 258 S.C. 316,
319, 188 S.E.2d 470, 471 (1972) ("We have also held that only such future or
prospective damages may be recovered as the evidence renders it reasonably
certain will of necessity result from the alleged injury."); Rosemond v. Campbell,
288 S.C. 516, 522, 343 S.E.2d 641, 645 (Ct. App. 1986) ("At common law, an
assignee's rights can be no greater than those of his assignor." (citation omitted));
id. at 523, 343 S.E.2d at 645 ("Consequently, the assignee of a debt takes the
obligation subject to all claims and defenses the obligor may have against the
assignor." (citation omitted)); id. ("However, absent an agreement to the contrary,
the common law assignee takes only the benefits, not the burdens of the assigned
obligation." (citation omitted)); id. ("Thus, as against the assignee, the obligor can
only assert a claim defensively when the assignee seeks to enforce the obligation;
he has no common law right to sue the assignee affirmatively on a claim against
the assignor arising from the underlying obligation." (citations omitted)).

2. As to whether the circuit court erred in failing to find Deutsche Bank was
barred from recovery pursuant to the doctrine of unclean hands: Matrix Fin. Servs.
Corp. v. Frazer, 394 S.C. 134, 140, 714 S.E.2d 532, 535 (2011) ("We take this
opportunity to definitively state that a lender may not enjoy the benefit of equitable
remedies when that lender failed to have attorney supervision during the loan

1
We have consolidated Booms's issues into five issues for the purposes of clarity
and brevity.
process as required by our law. We apply this ruling to all filing dates after the
issuance of this opinion." (emphasis added)); BAC Home Loan Servicing, L.P. v.
Kinder, 398 S.C. 619, 624, 731 S.E.2d 547, 550 (2012) ("To the extent some
confusion apparently exists as to what filing date Matrix referred to, we clarify
now that it is the date the document a party seeks to enforce was filed."); id.
("Here, Systems' mortgage was recorded on April 20, 2007, well before the
issuance of Matrix. Thus, regardless of whether an attorney participated in the
closing of Mortgage 2, BAC would not be barred from recovery by the illegality."
(emphasis added)).

3. As to whether the circuit court erred in granting Deutsche Bank's motion in
limine to exclude testimony regarding any statements made to Booms by the
mortgage servicer: Rule 402, SCRE ("Evidence which is not relevant is not
admissible."); Whaley v. CSX Transp., Inc., 362 S.C. 456, 483, 609 S.E.2d 286,
300 (2005) ("The admission of evidence is within the trial judge's discretion and
his decision will not be reversed absent an abuse of discretion." (citation omitted)).

4. As to Booms's claim that the circuit court erred in holding neither the note nor
the mortgage were unconscionable, we find the record does not support Booms's
argument. See Simpson v. MSA of Myrtle Beach, Inc., 373 S.C. 14, 24-25, 644
S.E.2d 663, 668 (2007) ("In South Carolina, unconscionability is defined as the
absence of meaningful choice on the part of one party due to one-sided contract
provisions, together with terms that are so oppressive that no reasonable person
would make them and no fair and honest person would accept them." (citation
omitted)); Hardee v. Hardee, 348 S.C. 84, 95-96, 558 S.E.2d 264, 269-70 (Ct.
App. 2001), aff'd as modified, 355 S.C. 382, 585 S.E.2d 501 (2003) ("In
determining unconscionability, courts are limited to considering facts and
circumstances existing when the contract was executed." (citing Restatement
(Second) of Contracts § 208 (1981))).

5. As to whether the circuit court erred in failing to find Deutsche Bank was not a
holder in due course, the circuit court awarded Booms a setoff of the foreclosure
judgment in the amount of $7,500 to reduce the amount owing on the note, thereby
implicitly finding Deutsche Bank was not a holder in due course. See S.C. Code
Ann. § 36-3-305(b) (Supp. 2014) ("The right of a holder in due course to enforce
the obligation of a party to pay the instrument is subject to defenses of the obligor
stated in Subsection (a)(1), but is not subject to . . . claims in recoupment stated in
Subsection (a)(3) against a person other than the holder.").

AFFIRMED.
FEW, C.J., and THOMAS and LOCKEMY, JJ., concur.