DANNY JONES, ET AL.
BAC HOME LOANS SERVICING, LP, ET AL.
Session April 25, 2017
from the Chancery Court for Shelby County No. CH-12-0817
James R. Newsom, Chancellor
Plaintiffs' home was sold at foreclosure in May 2011. By
way of a suit filed in the Shelby County Chancery Court, the
Plaintiffs sought rescission of the foreclosure sale and
asserted claims for breach of contract, violation of the
covenant of good faith and fair dealing, violation of the
Tennessee Consumer Protection Act, promissory estoppel, and
negligent misrepresentation. The trial court dismissed these
claims following the filing of a motion for summary judgment
by the Defendants. Discerning no error based on our review of
the record, we affirm the action of the trial court for the
reasons expressed herein.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Affirmed and Remanded
A. Brewer and Allison S. Raines, Memphis, Tennessee, for the
appellants, Danny Jones and DeEtta Jones.
Paxton Roberts, Memphis, Tennessee, for the appellees, BAC
Homes Loans Servicing, LP, and Wells Fargo Bank, N.A.
B. Goldin, J., delivered the opinion of the Court, in which
Richard H. Dinkins, J., and J. Steven Stafford, P.J., W.S.,
B. GOLDIN, JUDGE.
and Procedural History
March 2004, Danny and DeEtta Jones obtained a $180, 000.00
loan from Decision One Mortgage Company, LLC in order to
purchase a home in Germantown, Tennessee. The subject note
was a three-year adjustable rate mortgage, and initial
monthly payments were set at $1, 240.15. Contemporaneous with
the loan transaction, the Joneses executed a deed of trust
granting Mortgage Electronic Registration Systems, Inc., as
nominee for Decision One Mortgage Company, LLC, its
successors and assigns, a security interest in the acquired
Germantown property. There is no dispute that the note and
deed of trust are valid and enforceable contracts.
to the execution of the loan, servicing rights were acquired
by Bank of America, N.A. ("BANA"),  and in 2009, the
Joneses began to get behind on their regular loan payments.
Although they sought a loan modification from BANA, it is
undisputed that no BANA representative stated to the Joneses
that they would qualify for a loan modification. Moreover, in
December 2010, BANA sent a letter to the Joneses informing
them that they were not eligible for a loan modification
under the Home Affordable Modification Program
("HAMP"). Specifically, the Joneses were denied a
HAMP loan modification because their monthly housing expense
was less than or equal to 31% of their gross monthly income.
a "Notice of Intent to Accelerate" was sent to the
Joneses in November 2010 informing them that they could cure
their default by making a payment in the sum of $7, 006.48 by
December 17, 2010, the Joneses failed to take this action.
Instead, they submitted two payments totaling $3, 313.26 on
December 14, 2010. No further payments were made on the loan.
April 19, 2011, the Joneses received a notice of foreclosure
from BANA indicating that a foreclosure sale was scheduled to
take place in May 2011. The notice sent to the Joneses
indicated that they were in arrears in the amount of $9,
000.00. Although there is no dispute that the Joneses were
incapable of paying the $9, 000.00 delinquency on the date
they received the notice of foreclosure, Mr. Jones claims
that he spoke to a BANA representative on April 19, whereupon
he offered to pay $7, 800.00 that day and the remaining
balance by the end of the week. Mr. Jones further claims
that, notwithstanding his offer, the BANA representative
informed him that if he sent a payment of $6, 000.00, he
would qualify for a six-month repayment plan that would stop
the foreclosure sale. The BANA representative also allegedly
informed Mr. Jones that he could possibly qualify for a
one-year repayment plan if additional authorization was
secured. In accordance with these alleged representations,
Mr. Jones asserts that he went to Western Union on April 19
to send $6, 000.00 to BANA. He claims that he attempted to
send this sum by two separate transfer payments, one in the
amount of $1, 000.00, the other in the amount of $5, 000.00.
According to Mr. Jones, however, he later learned that his
transfer payments had been declined.
the asserted representations made by the BANA representative,
it is undisputed that there is no writing that evidences an
agreement to enter into a repayment plan/postpone
foreclosure. On May 6, 2011, the Joneses' Germantown
property was sold at foreclosure to Wells Fargo Bank, N.A.
("Wells Fargo"), for the sum of $177, 008.05. This
litigation subsequently ensued.
14, 2012, the Joneses filed a petition in the Shelby County
Chancery Court to set the foreclosure sale aside. The suit
was brought against BANA,  Wilson & Associates, PLLC, and
Wells Fargo, the last of which was alleged to have acquired
the underlying loan following its origination with Decision
One Mortgage Company, LLC.Wilson and Associates, PLLC would
eventually be dismissed from the case pursuant to an agreed
the filing of the petition, the Chancery Court entered a
temporary restraining order preventing the Defendants and any
of their agents from proceeding with an eviction regarding
the property. A few months thereafter, on July 16, 2012, a
consent order was entered enjoining the Defendants from
attempting to evict the Joneses as long as the Joneses made
timely payments into the Court as rent. The order specified
that the Joneses would have a grace period such that
"any monthly payment made between the 15th and 30th day
of that respective month will be deemed to be timely
September 24, 2012, the Joneses filed an amended petition
asserting various claims for relief. In addition to seeking
rescission of the foreclosure sale, the amended petition
alleged claims for breach of contract, breach of the covenant
of good faith and fair dealing, violation of the Tennessee
Consumer Protection Act, promissory estoppel, and negligent
misrepresentation. BANA and Wells Fargo filed their
respective answers to the amended petition on November 12,
2012. Therein, both Defendants denied that the Joneses were
entitled to any of the relief sought.
29, 2015, BANA and Wells Fargo collectively filed a motion
for summary judgment. The motion was supported by a
memorandum of law and a statement of undisputed material
facts. On October 20, 2015, the Joneses responded to
and Wells Fargo's summary judgment motion and statement
of undisputed material facts and filed their own statement of
additional undisputed material facts. BANA and Wells Fargo
responded to the Joneses' separate statement of
undisputed material facts on October 23, 2015.
hearing on the motion for summary judgment was held on
October 28, 2015. On February 29, 2016, the Chancery Court
entered an order granting the Defendants summary judgment
with respect to all of the claims asserted against them. An
amended final order was entered soon thereafter on March 2,
2016. In addition to restating the prior rulings from the
February 29 order, the March 2 order specifically denied
"[a]ny claims, motions or outstanding issue[s] not
specifically addressed in the Court's prior orders."
The Joneses then timely appealed, leading to our present
their appellate brief, the Joneses raise six issues for our
review, which we reword as follows:
1. Whether the Statute of Frauds justifies summary judgment
on the breach of contract claim.
2. Whether BANA's breach of an agreement to cancel a
foreclosure sale constituted a breach of the covenant of good
faith and fair dealing that attaches to all Tennessee
3. Whether summary judgment was appropriate with respect to
the Tennessee Consumer Protection Act claim.
4. Whether summary judgment was appropriate with respect to
the promissory estoppel claim.
5. Whether summary judgment was appropriate with respect to
the negligent ...