Session January 31, 2018
from the Circuit Court for Shelby County No. CT-003775-15
Mary L. Wagner, Judge
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.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Sanders, Memphis, Tennessee, for the appellant, Chandra L.
Scott Sauer, Benjamin William Perry, and Brian Robert Epling,
Nashville, Tennessee, for the appellee, Bank of New York
Mellon Trust Company, N.A.
D. Bennett, J., delivered the opinion of the Court, in which
J. Steven Stafford, P.J., W.S., and Brandon O. Gibson, J.,
D. BENNETT, JUDGE.
and Factual Background
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
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.
"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.
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.
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 ...