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Bush v. Commerce Union Bank

Court of Appeals of Tennessee, Nashville

January 18, 2017


          November 16, 2016 Session

         Appeal from the Chancery Court for Williamson County No. 44489 James G. Martin, Chancellor

         Kelly D. Bush and Byron V. Bush, DDS ("the Bushes") appeal the December 7, 2015 order of the Chancery Court for Williamson County ("the Trial Court") dismissing their suit against Commerce Union Bank d/b/a Reliant Bank ("Reliant"). We find and hold that the doctrine of prior suit pending applies to this case, and therefore, the Trial Court correctly dismissed this suit. We affirm.

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

          Byron V. Bush, DDS and Kelly D. Bush, Brentwood, Tennessee, pro se appellants.

          Marc T. McNamee and Stephen M. Montgomery, Nashville, Tennessee, for the appellee, Commerce Union Bank d/b/a Reliant Bank.

          D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which J. STEVEN STAFFORD, P.J., W.S., and BRANDON O. GIBSON, J., joined.




         In September of 2015, the Bushes filed a complaint ("the Instant Complaint") against Reliant. In the Instant Complaint, the Bushes acknowledged that they and Reliant also were parties to a suit that at the time was on appeal before this Court, Commerce Union Bank, Brentwood, Tennessee d/b/a Reliant Bank v. Kelly D. Bush, et al., No. M2015-00396-COA-R3-CV, 2016 WL 3640259 (Tenn. Ct. App. June 29, 2016), Rule 11 appl. perm. appeal denied Nov. 16, 2016 ("Reliant v. Bush").[1] By way of background, in Reliant v. Bush this Court affirmed the decision of the Trial Court and explained:

This is a post-foreclosure action in which the lender seeks to recover a deficiency judgment, interest, and the costs of collection. In their answer, the borrowers asserted that the loan was a nonrecourse debt; thus, they were not liable for the deficiency. Alternatively, they asserted that the property sold at foreclosure for an amount materially less than its fair market value. Following a bench trial, the trial court concluded that the loan was a full recourse debt as to both borrowers. This determination was based on the finding, inter alia, that all parties intended the borrowers to be personally liable. The trial court also concluded that the lender was entitled to a deficiency judgment, finding that the borrowers failed to overcome the rebuttable presumption that the foreclosure sale price was equal to the fair market value of the property at the time of the foreclosure sale. See Tenn. Code Ann. § 35-5-118. The trial court awarded the lender a judgment of $640, 783.41, plus interest and attorney's fees, against the borrowers jointly and severally.
* * *
In 2006, Byron V. Bush, D.D.S., purchased approximately five acres of unimproved commercial property in Davidson County, Tennessee, located at the southeastern corner of the intersection of Old Hickory Boulevard and Interstate 24, referred to as "StarPointe property" or "StarPointe."
On November 30, 2007, Dr. Bush and his wife, Kelly Bush (collectively "the Bushes"), entered into a Multipurpose Note and Security Agreement (the "Original Note") with Commerce Union Bank, Brentwood, Tennessee, d/b/a Reliant Bank ("Reliant") for the original principal amount of $1, 500, 000. To secure the Original Note, the Bushes concomitantly executed a deed of trust. Thereafter, the Original Note was renewed on three occasions to defer the due date: January 14, 2010; January 14, 2011; and May 14, 2011.
When the note matured on December 30, 2011, the entire principal balance remained unpaid and outstanding. Thereafter, the Bushes entered into a Forbearance Agreement in which they acknowledged that they were in default in the amount of $1, 547, 906.26 and waived all claims against Reliant. The agreement temporarily modified their payments due under the note until June 30, 2012, and provided the Bushes an opportunity to either (1) complete a sale of StarPointe prior to the expiration of the forbearance period and pay to Reliant $1, 400, 000 at closing, or (2) pay Reliant $1, 400, 000 prior to the expiration of the forbearance period. The Bushes failed to satisfy the requirements under the agreement, and by letter dated July 23, 2012, Reliant declared the note in default, accelerated the entire principal and interest balance, and made a demand for payment in full. When the Bushes did not cure the default, Reliant initiated foreclosure proceedings on StarPointe.
The foreclosure sale was scheduled to occur on September 28, 2012, but was postponed following Dr. Bush's petition for relief under Chapter 13 of the United States Bankruptcy Code, which he filed moments before the foreclosure sale was to begin. The bankruptcy petition was dismissed shortly after it was filed, and the foreclosure sale was rescheduled for December 4, 2012. The Bushes did not attend the foreclosure sale either in person or by representation. Reliant was the only bidder, bidding
$1, 050, 000 based upon the appraisal Reliant ordered from B.G. Jones & Company, LLC prior to the original scheduled foreclosure date that valued the property at $1, 050, 000, with an effective date of September 19, 2012. Due to the foreclosure being delayed, B.G. Jones & Company, LLC, provided a second appraisal, with an effective ...

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