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Regions Bank v. Sandford

Court of Appeals of Tennessee, Nashville

November 16, 2016

REGIONS BANK
v.
CHAS A. SANDFORD

          Session Date: September 21, 2016

         Appeal from the Chancery Court for Williamson County No. 2014CV43474 Michael Binkley, Judge

         This appeal arises from the trial court's entry of a default judgment in favor of the plaintiff. The plaintiff bank filed a complaint seeking a judgment against the defendant on a sworn account. After several attempts, the plaintiff was unable to obtain personal service of process on the defendant and attempted to obtain service of process by mail. The plaintiff's process server sent the summons by certified mail to the defendant's residential address, and the mailing was returned marked “unclaimed.” The plaintiff filed proof of service, indicating that service had been properly completed pursuant to Tennessee Rule of Civil Procedure 4.04(11), and filed a motion for default judgment. A copy of the motion for default judgment was sent by mail to the defendant at the same residential address. The defendant filed a response “by special appearance” opposing the bank's motion for default judgment based on insufficiency of service of process. Following a hearing, the trial court entered a default judgment in favor of the plaintiff. The defendant appealed. On appeal, we conclude that the trial court entered a default judgment in violation of Tennessee Rule of Civil Procedure 4.04(10), which expressly provides, “Service by mail shall not be the basis for the entry of a judgment by default unless the record contains a return receipt showing personal acceptance by the defendant[.]” We therefore vacate the trial court's order entering a default judgment in favor of the plaintiff and remand this matter for further proceedings.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Vacated and Remanded

          Larry L. Crain, Brentwood, Tennessee, for the appellant, Chas Alan Sandford.

          Christopher W. Conner and John M. Jackson, III, Maryville, Tennessee, for the appellee, Regions Bank.

          Arnold B. Goldin, J., delivered the opinion of the Court, in which J. Steven Stafford, P.J., W.S., and Kenny Armstrong, J., joined.

          OPINION

          ARNOLD B. GOLDIN, JUDGE

         Background and Procedural History

         This action commenced on August 22, 2014 when Regions Bank filed a complaint on a sworn account against Chas A. Sandford in the Williamson County Chancery Court. The complaint alleged that Mr. Sandford was indebted to Regions Bank in the sum of $153, 274.13 as evidenced by a sworn account attached as an exhibit to the complaint. The complaint alleged that Mr. Sandford had not paid the balance of the debt owed despite demands for payment. On the same day the complaint was filed, the trial court clerk issued a summons for service on Mr. Sandford at his residential address on Guy Ferrell Road in Franklin, Tennessee. On October 20, 2014, counsel for Regions Bank returned the summons unserved with a notation indicating that the process server was unable to make contact with Mr. Sandford after 11 attempts.

         The court clerk issued an alias summons on November 21, 2014. On April 23, 2015, Regions Bank returned the alias summons with a notation indicating that the process server received it on December 21, 2014 and attempted service of process by certified mail. The attached United States Postal Service return receipt reflected that the alias summons was sent by certified mail to Mr. Sandford at his residential address on December 22, 2014, and it was returned on March 5, 2015 stamped with the following notations: "Return to Sender, " "Unclaimed, " and "Unable to Forward." Along with the alias summons, Regions Bank filed an affidavit indicating that service had been properly completed pursuant to Tennessee Rule of Civil Procedure 4.04(11).

         On May 18, 2015, Regions Bank filed a motion for default judgment. In the motion, Regions Bank indicated that Mr. Sandford was served with the alias summons and a copy of the complaint on March 4, 2015. Copies of the motion for default judgment and the corresponding notice of hearing were sent to Mr. Sandford's residential address. On September 14, 2015, Mr. Sandford filed a response "by special appearance only for purposes of contesting service of process in this case" in which he opposed the motion based on Regions Bank's failure to obtain personal service. The trial court conducted a hearing on Regions Bank's motion for default judgment on September 25, 2015. Mr. Sandford did not appear at the hearing, and the trial court granted the motion. On October 8, 2015, the trial court entered a written order granting a default judgment in favor of Regions Bank and against Mr. Sandford in the amount of $153, 274.13. Thereafter, Mr. Sandford timely filed a notice of appeal to this Court.

         Issues

         Mr. Sandford raises the following issues on appeal, restated ...


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