Tag: Tennessee Supreme Court

Lender Groups ask Tennessee Supreme Court to weigh in on conflicting authority on wrongful foreclosures

In July, I wrote about a July 2022 Court of Appeals opinion holding that even a defective foreclosure sale conveys valid title to real property. That’s because Tenn. Code Ann. §§ 35-5-106 and 35-5-107 expressly say that title is not impacted by a defective sale and, instead, the foreclosing trustee is liable for monetary damages.

Within a few minutes, a local banker commented on the post and asked: Yeah, but did you see this one from last month?

He was talking about Terry Case v. Wilmington Tr., N.A. as Tr. for Tr. MFRA 2014-2, No. E202100378COAR3CV, 2022 WL 2313548 (Tenn. Ct. App. June 28, 2022)– issued less than a month earlier–which held (sort of) exactly the opposite: “[A] trustee’s mere failure to comply with the terms of a deed of trust will render the foreclosure sale invalid.” Id. at *8.

How does the law reconcile these drastically different outcomes, based on the same wrongful foreclosure allegations?

Tennessee is a non-judicial foreclosure state, but don’t be lulled into a sense that foreclosures are simple (i.e. just “paperwork”). Instead, a foreclosing lender must simultaneously adhere to two separate processes, one of which is found in Tennessee statutes and the other in the underlying deed of trust.

Sometimes, they match; sometimes, they don’t.

If the lender doesn’t comply with any of the requirements of both tracks in full, though, this developing caselaw imposes drastically different remedies for non-compliance. Fail to satisfy the statutes? No big deal. Fail to satisfy the deed of trust? Here’s a nuclear bomb to your title.

Needless to say, this is confusing to creditors, borrowers, and buyers at foreclosure sales.

The plaintiff in the June 2022 case has filed an Application for Permission to Appeal to the Supreme Court (a full copy is attached below), seeking clarification on the splintered issues of law surrounding wrongful foreclosure claims. The Application opens with a direct message: “Tennessee wrongful foreclosure law is in a state of disarray.”

On behalf of the Tennessee Bankers Association and the Tennessee Mortgage Bankers Association, my office filed an Amicus Brief in support of the request to have the Supreme Court step in (also below).

This is a big deal. If this caselaw stands, title to foreclosed real properties will remain clouded until the wrongful foreclosure claims expire (6 years from the sale date). And, sure, a title company can vet the sale process, but title companies don’t like any risk, no matter how small.

This will render post-foreclosure title completely uninsurable. This isn’t good for anybody. Borrowers, lenders, buyers–everybody loses here.

application-for-permission-to-appeal-4878-4945-6182-v.1Download
filed-amicus-brief-in-wilmington-v-case-4884-8705-5926-v.1Download

Let’s Get Political: My Pick for Tennessee’s Attorney General

After voting in Tennessee and Davidson County’s primary elections this morning, I’m feeling a bit political, so I’ll share my endorsement for the Tennessee Supreme Court’s interviews for Attorney General of the State of Tennessee, scheduled for August 8 and 9.

But, first, I’ll tell you a story about Bill Young, one of the applicants. In August 2016, Governor Haslam appointed Young to be a Davidson County Chancery Court Judge, in Part II.

I had never met Bill Young, not until a September 2016 Chancery Court court docket, which–coincidentally–was his first ever court docket as a judge. And my case was the first case heard that day.

I can’t remember the exact issue, but I remember that, pretty quickly, I won the hearing. He ruled in my favor and asked me to prepare the Order. All good, right?

I have a thing I do when I win in Court. I leave the courtroom as soon as possible. Nothing good comes from lingering in court after you win. I don’t need judges reconsidering, or listening to more argument, or some surprise development.

I win. I thank the judge. Then I leave court.

But, that day, as I was leaving–in fact, I can still picture my hand on the big swinging door in Part II of Chancery Court–the Big Firm Lawyer who I beat was still arguing his case. And, worse, this new judge was listening.

So, I went back to counsel’s table, and I defended the logic of the original decision, and, ultimately, I won that hearing (and then left as soon as possible).

But, I also remember thinking “I’m not so sure about this new judge.“

As a litigator, my entire job depends on the quality of the judges I appear in front of. With any judge, I watch closely and form opinions about how they handle matters in front of them. Are they prepared? Are they respectful? Are they decisive? Are they smart? And, to a larger degree than is fair, did they agree with me? All very relevant factors to my job and my clients.

Because we had such little Chancery Court judicial turnover in Davidson County, I watched Chancellor Young very closely over those first months.

I’ll cut to the chase. Despite that early skepticism, I really, really enjoyed practicing in front of him during his time on the bench. I came to realize that his demeanor that first day wasn’t indecisiveness; it was a sincere desire to get it right and to make sure that both sides were fully heard.

In fact, the highest compliment I can give any judge is that I respect and trust them, no matter how they rule in my cases. That’s what I have said for years about Chancellors McCoy and Lyle–I don’t always win in front of them, but I trust them. It’s a compliment that I give begrudgingly, after they have earned it after doing good work as a judge.

I quickly felt that way about Bill Young. In fact, my two most vivid memories from court appearances in 2017 were two losses–both in front of Chancellor Young. And I respected both opinions. (As a disclaimer, however, I could argue both cases sitting here today and still feel like I had the better argument on both.)

What’s my point? Politics in this country are more divisive than they’ve been at any point in my lifetime. This divisiveness–bordering on spitefulness–has seeped into Tennessee politics. And I hate that.

Through its work and policy decisions, the Tennessee Attorney General plays a big role in many of those political decisions. When I look at the list of candidates, I see a number of “political” candidates, a few with extreme ideological backgrounds.

I don’t want them to be the next Attorney General. Our State deserves somebody who is cautious, deliberate, smart, and understands the value in making everybody in the state feel heard.

It’s an important decision that will impact the lives of Tennesseans for years to come. You can learn more about the applicants here, and all interviews are open to the public and will be livestreamed to the TNCourts YouTube page.

Everything that I have seen from Bill Young makes me think he’d do a great job as Attorney General for all of the people of the State of Tennessee.

Tennessee Supreme Court Changes Rule 4 on Service of Process

The Tennessee Supreme Court has issued four orders adopting amendments to various rules of procedure that will go into effect on July 1, subject to approval from the Tennessee General Assembly.

These include changes to the rules of criminal procedure and evidence, but, today, I’m going to talk about how Tennessee Rule of Civil Procedure 4 has changed. Here is a link to the proposed changes. This includes changes to service of process, which is a critical step in any litigation.

On this issue, it’s Tenn. R. Civ. P. 4.04 that is amended, where a plaintiff tries to serve a defendant via certified mail. Specifically, the amendments add a provision that allows for valid service where a defendant “refuse[s] to accept delivery” of the certified mail, as long as the record contains:

a return receipt stating that the addressee or the addressee’s agent refused to accept delivery, which is deemed to be personal acceptance by the defendant pursuant to Rule 4.04(11)

The Advisory Commission Comments provide a helpful warning for these situations. They state that “the Postal Service’s notation that a registered or certified letter is ‘unclaimed’ is no longer sufficient, by itself, to prove that service was ‘refused.’ ”

This comment clearly reminds plaintiffs to make sure that the return receipt states “refused” and not “unclaimed.” This distinction is important, since so many defendants simply never go to the post office to pick up their certified mail, because they assume it’s just a lawsuit, demand letter, or some other collection correspondence. This Comment makes clear that a lazy defendant does not submit itself to personal jurisdiction.

Two Signatures Not Required: New Tennessee Supreme Court Decision Finds Personal Guarantees will be Enforced by Their Clear Text

Lately (i.e. in this economy), I’m constantly fighting over the enforceability of personal guarantees.

A personal guarantee is an agreement by which a third party agrees to personally repay another person’s/corporation’s debt. When a corporate entity doesn’t have a credit history or sufficient assets, a lender will generally ask for an individual to personally guarantee the debt. Creditors, obviously, want guarantees, because more parties obligated to repay your debt increases your chances for repayment. If a creditor files a lawsuit, it can obtain a judgment for the debt against all of the guarantors.

With the rise in defaults, guarantors are getting sued more than ever before. Their only defense is to attack the guarantee, and, as a result, the text of these agreements is constantly being tested. A common issue relates to the signature line(s): if a corporation’s president signs a contract that contains guarantee language, does the president need to sign twice, both as “Bob Smith, President” and then a second time as “Bob Smith?”

In the past, the overwhelming outcome was that there needed to be two signatures–one from the President and one from the Individual.

So, in that context, you’ll understand why I liked the recent Tennessee Supreme Court case of 84 Lumber Company v. Bryan Smith (Dec. 12, 2011). There, the Supreme Court looked only at the text of the contract. That text clearly said that the person signing the contract for the corporation was also personally obligating himself  to serve as the guarantor. When the text is crystal clear, it doesn’t matter that there is only one signature.

So, even though the only signature on the contract was by ““R. Bryan Smith, President,” the Court said “[t]he explicit and unambiguous language of the contract points to only one conclusion: Mr. Smith agreed to be personally responsible for the amounts due on the account.”

A good practice would still be to get two signatures, but, in light of this case, it’s certainly not fatal to only have one signature.