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Thomas v. Bank of America, N.A.

Court of Appeals of Tennessee, Nashville

July 5, 2017

BETTY C. THOMAS
v.
BANK OF AMERICA, N.A. et al.

          Assigned on Briefs April 3, 2017

         Appeal from the Chancery Court for Williamson County No. 41802 Michael Binkley, Judge

         Plaintiff appeals the trial court's decision to grant summary judgment to Defendants related to the foreclosure of Plaintiff's home. She contends the trial court erred in summarily dismissing her complaint. She also contends the trial court abused its discretion in denying Plaintiff's motion to alter or amend. Defendants insist the trial court should be affirmed in all respects. They also contend the appeal should be dismissed due to Plaintiff's failure to comply with Rule 27 of the Tennessee Rules of Appellate Procedure and Rule 6 of the Rules of the Tennessee Court of Appeals. As Defendants contend, Plaintiff's brief fails to comply with our appellate rules of advocacy and for this reason alone we would be justified in affirming the trial court. Nevertheless, we reviewed the record and the trial court's actions and affirm the trial court in all respects. Accordingly, the trial court's judgment is affirmed.

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

          Betty C. Thomas, Franklin, Tennessee, Pro Se.

          Edmund Scott Sauer, Brian Robert Epling, and Harold Frederick Humbracht, Jr., Nashville, Tennessee, for the appellee, Bank of America of North Carolina.

          Kelly Marie Telfeyan, Nashville, Tennessee, for the appellee, Seterus, Inc.

          Frank G. Clement Jr., P.J., M.S., delivered the opinion of the Court, in which Thomas R. Frierson, II, and Brandon O. Gibson, JJ., joined.

          OPINION

          FRANK G. CLEMENT JR., P.J., M.S.

         Plaintiff Betty C. Thomas ("Thomas") appeals the grant of summary judgment and the trial court's order denying Thomas's motion to alter or amend. Thomas timely appealed. Because Thomas failed to comply with Tenn. R. App. Proc. 27 and Rule 6 of the Tennessee Court of Appeals, and because we find that the trial court properly granted summary judgment, we dismiss the appeal.

         On August 30, 2007, Plaintiff Betty C. Thomas ("Thomas") executed a promissory note in the amount of $124, 500.00 to purchase the residence located at 796 Edwards Circle, Franklin, Tennessee 37064. That same day, Thomas executed a deed of trust to secure the note against the property. Section 3 of Thomas's deed of trust specifically provided that each month, Thomas shall pay an escrow charge that covered, among other things, her property taxes.

         In June 2012, Bank of America, N.A. ("Bank of America"), Thomas's then-current mortgage servicer, notified Thomas that she failed to timely pay her property taxes. Bank of America informed Thomas that, if she did not pay her property taxes within thirty days, Bank of America had the right to establish an escrow account to advance the funds necessary to pay the property taxes, and that "[t]he escrow w[ould] remain in effect for the life of the loan." Due to Thomas's inaction, Bank of America advanced the funds necessary to pay Thomas's property taxes and established an escrow account. This was done in compliance with Section 3 of Thomas's deed of trust. The escrow account increased Thomas's monthly loan payment by $326.44, making her monthly amount owed $1, 113.36. Thomas, however, refused to pay the additional amount allocated to escrowed property taxes. Instead, she continued to make monthly payments of $786.92, which covered only the principal and interest portions of the loan.

         In October 2012, Bank of America informed Thomas that it would refuse to accept payments for less than the full amount, so Thomas stopped making her mortgage payments altogether. Bank of America declared Thomas's loan in default and accelerated the balance due on the loan. At this point, Bank of America transferred the servicing of Thomas's mortgage to Seterus, Inc. ("Seterus"), which began servicing Thomas's mortgage on or about December 1, 2012. That same day, Seterus initiated non-judicial foreclosure proceedings against Thomas.

         In February 2013, Thomas filed a lawsuit against Bank of America and Seterus (together, "Defendants"). The parties agreed to halt the foreclosure proceedings until the resolution of the instant matter. In her Complaint, Thomas alleged violations of the Fair Debt Collections Practices Act, the Real Estate Settlement Procedures Act, the Tennessee Consumer Protection Act, and the Equal Credit Opportunity Act. The crux of Thomas's claim was that Defendants lacked the authority to establish an escrow account for her property taxes.

         Defendants filed separate motions for summary judgment arguing that Thomas's deed of trust expressly allowed them to create an escrow account in the event that Thomas failed to pay her property taxes. Defendants further argued that the creation of an escrow account did not violate state or federal law. Thomas did not file responses to either of Defendants' motions for summary judgment, nor did she appear at the hearing for these motions. Thomas's absence from the hearing was notable because the trial court reset the hearing date sua sponte, solely as a courtesy to Thomas.[1] In its order resetting the summary judgment hearing, the trial court emphasized that under no circumstances would the hearing be postponed again. The hearing took place on its rescheduled date, and finding no genuine issue of material fact, the trial court granted Defendants' motions for summary judgment.

         Thomas then moved to alter or amend the trial court's judgment under Tenn. R. Civ. P. 59.04, primarily citing her inability to appear at the summary judgment hearing. The trial court denied Thomas's motion, concluding that Thomas failed to respond to either party's motion for summary judgment and that the evidence presented in her motion to alter or amend "d[id] not meet the threshold criteria" under Tenn. R. Civ. P. 59.04.

         On September 18, 2015, Thomas filed a notice of appeal contesting the trial court's dismissal of her claims against Defendants related to the foreclosure on her home. On January 4, 2017, noting "extraordinary delays" due primarily to Thomas's failure to comply with the appellate rules, this court informed Thomas that she had one final opportunity to file her appellate brief by February 3, 2017, or else risked having her appeal summarily dismissed. On February 3, Thomas filed a two-page brief, with several documents attached to the brief. Although Thomas fails to identify any issues and fails to provide an appropriate argument to address an issue, it appears she contends that the trial court erred in granting Defendants' motions for summary judgment and in denying her motion to alter or amend. Each Defendant timely filed an appellee's brief and both contend the appeal ...


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