John M. Abbott, LLC v. Lake City Bank, 02A05–1402–PL–53.

• Citation: 14 N.E.3d 53
• Case Date: July 16, 2014
• Court: Court of Appeals of Indiana

14 N.E.3d 53

JOHN M. ABBOTT, LLC, Class Representative and All Others Similarly Situated, Appellant–Defendant/Counterclaimant
v.
LAKE CITY BANK, Appellee–Plaintiff/Counterdefendant.

No. 02A05–1402–PL–53.

Court of Appeals of Indiana.

July 16, 2014.

14 N.E.3d 54

Andrew B. Miller, Starr Austen & Miller, LLP, Logansport, IN, Attorney for Appellant.

Daniel D. Bobilya, Conor S. Slocum, Bobilya Law Group, LLC, Fort Wayne, IN, Attorneys for Appellee.

OPINION

CRONE, Judge.

Case Summary

John M. Abbott, LLC (“Abbott LLC”), acting as class representative, filed a class action against Lake City Bank (“the Bank”), maintaining that the Bank breached the terms of its promissory note (“the Note”) executed in conjunction with certain commercial real estate loans. The dispute concerned the Bank's use of a 365/360 interest calculation method and its alleged impact on the interest owed. The Bank filed a motion for summary judgment, which the trial court granted. Abbott LLC now appeals, asserting that genuine issues of material fact exist that render summary judgment improper. Finding no genuine issue of material fact, we affirm the trial court's summary judgment order.

Facts and Procedural History

In 2006, John Abbott sought to purchase a retail hardware business in Rochester. He formed Abbott LLC (of which he is sole owner) to purchase and obtain financing for the business. Abbott LLC sought a $150,000 commercial loan from the Bank. At closing, John Abbott signed the Note on behalf of Abbott LLC. The Note contains a provision stating that the borrower

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acknowledges that he read and understood the Note's provisions before signing.

With respect to payment and interest rate, the Note states in pertinent part,

PAYMENT. Subject to any payment changes resulting from changes in the index, Borrower will pay this loan in 119 regular payments of $1,475.00 each and one irregular last payment estimated at $72,663.58. Borrower's first payment is due July 10, 2006, and all subsequent payments are due on the same day of each month after that. Borrower's final payment will be due on June 10, 2016, and will be for all principal and all accrued interest not yet paid. Payments include principal and interest. Unless otherwise agreed or required by applicable law, payments will be applied first to any accrued unpaid interest; then to principal; and then to any unpaid collection costs. The annual interest rate for this Note is computed on a 365/360 basis; that is, by applying the ratio of the annual interest rate over a year of 360 days, multiplied by the outstanding principal balance, multiplied by the actual number of days the principal balance is outstanding. Borrower will pay Lender at Lender's address shown above or at such other place as Lender may designate in writing.

VARIABLE INTEREST RATE. The interest rate on this Note is subject to change from time to time based on changes in an index which is the Five Year Treasury Bill (the “Index”). Lender will tell Borrower the current Index rate upon Borrower's request. The interest rate change will not occur more often than each 5 years. The first rate adjustment will be 6/9/11. Borrower understands that Lender may make loans based on other rates as well. The Index currently is 4.910% per annum. The interest rate to be applied to the unpaid principal balance during this Note will be at a rate of 3.400 percentage points over the Index, resulting in an initial rate of 8.310% per annum. NOTICE: Under no circumstances will the interest rate on this Note be more than the maximum rate allowed by applicable law. Whenever increases occur in the interest rate, Lender, at its option, may do one or more of the following: (A) increase Borrower's payments to ensure Borrower's loan will pay off by its original final maturity date, (B) increase Borrower's payments to cover accruing interest, (C) increase the number of Borrower's payments, and (D) continue Borrower's payments at the same amount and increase Borrower's final payment.

Appellant's App. at 114 (emphasis added).

In June 2009, the Bank filed a commercial foreclosure action against certain borrowers. As part of that action, the borrowers filed a counterclaim seeking certification as a class and claiming that the Bank breached the terms of the Note pertaining to the interest rate. In January 2012, the trial court conditionally certified and stayed the class. In September 2012, counsel for Abbott LLC (and for the class) filed a motion to substitute Abbott LLC as class representative. The trial court granted the motion.

In its class action, Abbott LLC claimed that the Bank exceeded the agreed-upon interest rate by applying the 365/360 ratio. The Bank filed a motion for summary judgment, which the trial court granted following a hearing. Abbott LLC now appeals. Additional facts will be provided as necessary.

Discussion and Decision

Abbott LLC contends that the trial court erred in granting the Bank's motion for summary judgment. We review the trial court's decision to grant or deny summary

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judgment using the same standard as the trial court. Worman Enters., Inc. v. Boone Cnty. Solid Waste Mgmt. Dist., 805 N.E.2d 369, 373 (Ind.2004). A motion for summary judgment is properly granted only when the pleadings and designated evidence reveal that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Bank of New York v. Nally, 820 N.E.2d 644, 648 (Ind.2005). In determining whether...