Assigned on Briefs April 1, 2019
from the Chancery Court for Shelby County No. CH-16-1422
JoeDae L. Jenkins, Chancellor
appeal involves a non-judicial foreclosure by Brandywine
Homeowners' Association (the HOA) for non-payment of
assessments due to the HOA by former property owner,
plaintiff Michael McKenzie. It is undisputed that there was
no irregularity in the recording, notice or foreclosure of
the HOA's lien on the property. Plaintiff argues that the
foreclosure sale price, $4, 445.90, is shockingly low in
light of the trial court's finding that the property was
worth about $100, 000. Plaintiff does not allege, nor did the
trial court find, any "misconduct, fraud, or unfairness
on the part of the [HOA] that caused or contributed to an
inadequate price." Holt v. Citizens Central
Bank, 688 S.W.2d 414, 416 (Tenn. 1984). The trial court
granted the HOA summary judgment, refusing plaintiff's
request to set aside the foreclosure on equitable grounds.
Because the Supreme Court in Holt held that the
"lone infirmity" of a "conscience shocking
inadequate price . . . will no longer justify voiding a
foreclosure sale," id., we are compelled to
affirm the trial court's judgment.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Affirmed; Case Remanded
Jones, Memphis, Tennessee, for the appellant, Michael
Davis Carson, Hal S. Spragins Jr., and Dylan J. Gillespie,
Memphis, Tennessee, for the appellee, Brandywine
Homeowners' Association, Inc.
Charles D. Susano, Jr., J., delivered the opinion of the
court, in which D. Michael Swiney, C.J., and Andy D. Bennett,
CHARLES D. SUSANO, JR., JUDGE.
trial court succinctly set forth the pertinent facts in its
order granting summary judgment. Neither party takes issue
with any of these findings. The following is a verbatim quote
from the trial court's order, with numbering omitted and
the sentences reorganized into paragraphs.
This is an action for damages and to set aside the
non-judicial foreclosure of certain real estate formerly
owned by the plaintiff . . . (the "Property"). The
Property is subject to certain covenants, conditions, and
restrictions found in the Declaration of Covenants,
Conditions, and Restrictions (the "CCR"). Article
VII, Sections 1 and 2 of the CCR subject all owners of real
estate in the Brandywine subdivision to certain assessments
or dues for the regular operation and upkeep of the
In the event of nonpayment of assessments or dues, the CCR
permits the defendant homeowners' association (the
"HOA") to place a lien on the relevant lot for the
outstanding amount, plus interest and collection costs. The
CCR further provides that the HOA may proceed directly
against the delinquent homeowner for the amount owed or
foreclose the lien and sell the lot at a public auction.
Should the HOA choose to foreclose its lien, the CCR provides
certain prerequisite conditions: the time and place of the
foreclosure sale must be published for twenty-one (21) days
by three (3) consecutive weekly publications in a newspaper
circulated in Shelby County, Tennessee, and the owner of the
subject lot must be notified of the time and place of the
sale by written notice at his or her last known address.
On July 11, 2014, the HOA placed and recorded a lien on the
Property following the plaintiff's nonpayment of
assessments levied pursuant to the CCR. On July 20, 2015, the
HOA obtained a judgment against the plaintiff in the Shelby
County General Sessions Court for the outstanding assessment
amount. The HOA then opted to foreclose its lien on the
Property, and notified Plaintiff of its intent and the time
and place of the foreclosure sale by certified mail to the
plaintiff's last known address and published the same in
The Memphis Daily News for three consecutive weeks.
On June 17, 2016, the foreclosure sale took place, and the
HOA, the sole bidder, obtained the property for $4, 445.90.
The property had a fair market value of approximately $100,
000.00 at the time of the foreclosure sale.
The foreclosure sale price shocks the Court's conscience;
however, pursuant to Brooks v. Rivertown on the Island
Homeowner Association, Inc., No. W2011-00326-COA-R3-CV,
2011 WL 6034781 (Tenn. Ct. App. Dec. 6, 2011), applying
Holt v. Citizens Central Bank, 688 S.W.2d 414 (Tenn.
1984), a conscience-shocking foreclosure sale price standing
alone, absent some irregularity in the ...