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Amresco Independence Funding, LLC v. Renegade Mountain Golf Club, LLC

Court of Appeals of Tennessee, Knoxville

March 31, 2015

AMRESCO INDEPENDENCE FUNDING, LLC ET AL.
v.
RENEGADE MOUNTAIN GOLF CLUB, LLC ET AL.

Session January 15, 2015

Appeal from the Chancery Court for Cumberland County No. 2011-CH-452 Ronald Thurman, Chancellor

G. Kevin Hardin, Knoxville, Tennessee, for the appellant,

Business Loan Center, LLC. C. Douglas Fields, Crossville, Tennessee, for the appellee, Joseph Louis Wucher, Sr.

Thomas R. Frierson, II, J., delivered the opinion of the court, in which Charles D. Susano, Jr., C.J., and D. Michael Swiney, J., joined.

OPINION

THOMAS R. FRIERSON, II, JUDGE

I. Factual and Procedural Background

On April 19, 2002, AMRESCO Independence Funding, LLC ("AIF"), agreed to provide a loan in the amount of $1, 333, 300 to Renegade Mountain Golf Club, LLC ("Renegade"). Renegade executed a promissory note to document the loan. In addition, Michael Haines, Edward Curtis, and Joseph Wucher, Sr., executed personal guarantees securing repayment of the note. On October 30, 2002, AIF entered into an Asset Purchase Agreement with Business Loan Center, LLC ("BLC"). BLC purchased the assets of AIF, including loans payable, as part of the Asset Purchase Agreement. AIF accordingly assigned its rights in the subject loan to BLC.

On February 1, 2007, Renegade defaulted according to the terms of the loan at issue due to lack of payment. A complaint[1] was subsequently filed on June 3, 2011, in the Cumberland County Chancery Court, seeking payment of the outstanding loan balance from Renegade and the three individual guarantors. Concomitantly, process was issued by the clerk of the court. Service of process was attempted on Mr. Wucher, a resident of California, through the Tennessee Secretary of State. Such service was unsuccessful. The record contains an affidavit and other documentation from the Secretary of State showing that service of process was attempted via the United States Postal Service but never completed. Moreover, the record contains no evidence that process for Mr. Wucher was ever reissued.

On October 30, 2013, Mr. Wucher filed a limited appearance and motion to dismiss pursuant to Tennessee Rule of Civil Procedure 12.02, asserting that he had never been properly served with process in this action. In response, BLC admitted that Mr. Wucher was never served through the Tennessee Secretary of State. BLC posited, however, that Mr. Wucher had been properly served via certified mail on November 14, 2011. In support of this contention, BLC filed a copy of the envelope in which the complaint and summons were allegedly mailed to Mr. Wucher at his California residence; a United States Postal Service receipt showing a date of mailing of November 14, 2011, along with the costs of the mailing; and a return receipt bearing the signature of an unknown individual who accepted the mailing as "agent."

A hearing was conducted on April 28, 2014, regarding Mr. Wucher's motion to dismiss. Thereafter, the trial court entered an order granting Mr. Wucher's motion. In its order, the trial court, inter alia, explained the basis for its ruling:

As to the motion of Mr. Wucher, the Court is of the opinion that Rule 4 of the Tennessee Rules of Civil Procedure must be considered and applied as a whole, so that notwithstanding the language of section 4.05(5) indicating that service is complete upon mailing, tendering the certified mail card evidencing mailing of certified mail whether received or not, is not sufficient to establish service of process.
The Court finds that the requirements of 4.03(2) must be met as referenced in 4.04(10) and 4.05(a) [and] (b). The record in the case does not contain any return, original or a copy, of any summons purportedly served on November 21, 2011 nor does the record indicate any summons issued other than the ...

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