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Bank of New York Mellon v. Berry

Court of Appeals of Tennessee, Jackson

February 15, 2018

BANK OF NEW YORK MELLON
v.
CHANDRA BERRY

          Session January 31, 2018

         Appeal from the Circuit Court for Shelby County No. CT-003775-15 Mary L. Wagner, Judge

         A bank filed a wrongful detainer warrant in general sessions court against a homeowner who defaulted on her loan, and the homeowner raised counterclaims that the foreclosure was wrongful and fraudulent. The general sessions court awarded the bank possession of the property and dismissed the homeowner's counterclaims as barred by res judicata based on an earlier action in which the homeowner sought to prevent the foreclosure. The homeowner appealed the general sessions court's decision, and the circuit court also dismissed the homeowner's counterclaims based on res judicata. The homeowner appealed the circuit court's judgment to this court, and the bank sought an award of its attorney's fees as damages for having to defend against a frivolous appeal. We affirm the circuit court's judgment and deny the bank's request for an award of its fees.

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

          Archie Sanders, Memphis, Tennessee, for the appellant, Chandra L. Berry.

          Edmund Scott Sauer, Benjamin William Perry, and Brian Robert Epling, Nashville, Tennessee, for the appellee, Bank of New York Mellon Trust Company, N.A.

          Andy D. Bennett, J., delivered the opinion of the Court, in which J. Steven Stafford, P.J., W.S., and Brandon O. Gibson, J., joined.

          OPINION

          ANDY D. BENNETT, JUDGE.

         Procedural and Factual Background

         Chandra L. Berry purchased a house located at 6215 Malloch Drive in Memphis, Tennessee (the "Property") on August 5, 2004. At some point, Ms. Berry defaulted on her mortgage obligation and was unsuccessful in her attempts to modify or restructure the loan. This Court issued two decisions in a related case in 2013 and 2015, both of which addressed Ms. Berry's attempts to prevent her house from being foreclosed upon. Berry v. Mortg. Elec. Registration Sys., No. W2014-02175-COA-R3-CV, 2015 WL 5121542 (Tenn. Ct. App. Aug. 31, 2015); Berry v. Mortg. Elec. Registration Sys., No. W2013-00474-COA-R3-CV, 2013 WL 5634472 (Tenn. Ct. App. Oct. 15, 2013). The following facts were recited in the more recent opinion and are applicable to this case:

Ms. Berry signed a Note and Deed of Trust dated August 5, 2004, for $270, 000 with regard to the property located at 6215 Malloch Drive, Memphis, TN 38119. Ms. Berry's executed Note stated that the "Lender is Mortgage Lenders Network USA, Inc." ("Mortgage Lenders"). The Note was made payable by Mortgage Lenders to EMAX Financial Group, LLC, who made the Note payable to Residential Funding Corporation, who lastly made the Note payable to JP Morgan Chase Bank, as trustee. MERS[1] "as nominee for Mortgage Lenders Network USA, Inc., its successors and assigns, " assigned the Deed of Trust to The Bank of New York Mellon Trust Company, N.A. as successor to JP Morgan Chase Bank.

Berry, 2015 WL 5121542, at *3. The note and the deed of trust each included language permitting the transfer to a third party, which would have the same rights to the note and/or deed of trust as the original parties.

         On April 9, 2015, the successor trustee, Wilson & Associates, PLLC, sent Ms. Berry a notice of foreclosure. The foreclosure sale occurred on May 8, 2015, and Bank of New York Mellon Trust Company, N.A. ("BNY") purchased the property. Ms. Berry refused to vacate the premises, and in June 2015 BNY filed an unlawful detainer warrant against Ms. Berry in general sessions court in an effort to obtain possession of the Property. Ms. Berry filed counterclaims against BNY in which she alleged BNY was liable for wrongful foreclosure, fraud and/or misrepresentation, slander of title, wantonness, intentional misconduct, and reckless and/or grossly negligent actions. She sought to set aside the trustee's sale, to void or cancel the trustee's deed upon sale, and to quiet title to the Property.

         The general sessions court awarded BNY possession of the Property and dismissed Ms. Berry's claims, finding they were barred by res judicata. Ms. Berry appealed the general sessions court's judgment to the circuit court. BNY filed a motion for summary judgment, and the circuit court issued an order on May 16, 2017, granting BNY's motion and dismissing Ms. Berry's counterclaims. The court wrote:

Ms. Berry's counter-claims are barred by res judicata. The issues raised in her counter-claim are virtually verbatim [of] the issues raised in the Chancery Court action. Further, in her response, Ms. Berry argues at times about how the appellate court erred. She cannot relitigate those issues before this Court.
With regard to [BNY's] claim for possession, the undisputed facts demonstrated that as a matter of law, it is entitled to possession of the Property located at 6215 Malloch Drive, Memphis, TN 38119.
Ms. Berry appeals the circuit court's judgment granting BNY's motion for summary judgment and ...

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