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Sharifa v. Fargo

Court of Appeals of Tennessee, Nashville

October 31, 2019


          Assigned on Briefs August 1, 2019

          Appeal from the Circuit Court for Davidson County No. 16C1869 Joseph P. Binkley, Jr., Judge

         This is an appeal from the trial court's denial of a motion to recuse and award of summary judgment. Plaintiff-homeowner took out a loan secured by a deed of trust on a parcel of real property. After defaulting on the loan, plaintiff and defendant-bank entered into a loan modification agreement. Plaintiff, however, again defaulted on the loan, and, after she failed to make the required acceleration payments, defendant initiated foreclosure proceedings pursuant to the deed of trust. The real property ultimately was sold at foreclosure for less than the balance owed on the loan. Plaintiff then sued defendant for breach of contract and wrongful foreclosure. Defendant moved for summary judgment. Plaintiff never responded to defendant's motion for summary judgment. Three days prior to the hearing on the summary judgment, plaintiff filed a motion for a change of venue, which the trial judge treated as a recusal motion pursuant to Tennessee Supreme Court Rule 10B and which, following a hearing, he denied. The trial court subsequently granted defendant's summary judgment motion and dismissed plaintiff's claims with prejudice. Plaintiff appeals both the trial court's denial of the motion to recuse and its granting of the motion for summary judgment. We affirm.

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

          Shauneille Sharifa (Morton), Madison, Tennessee, Pro se.

          Jonathan Cole and Brittany B. Simpson, Nashville, Tennessee, for the appellee, Wells Fargo Bank, N A.

          Arnold B. Goldin, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and Frank G. Clement, Jr., P.J., M.S., joined.



         Background and Procedural History

         On October 18, 2006, Shauneille Sharifa (Morton) ("Plaintiff") purchased a home at 2268 Gilmore Crossing Lane (the "Home") in Nashville, Tennessee from NVR, Inc. To enable her to purchase the Home, Plaintiff took out an adjustable rate loan with New Century Mortgage in the amount of $147, 225.00 and secured the loan with a deed of trust on the Home (collectively, the "Loan". In 2007, Wells Fargo ("Defendant") became the loan servicer on the Loan.[1]

         In 2010, Plaintiff defaulted on the Loan, and, on December 29, 2010, she entered into a Loan Modification Agreement with Defendant, increasing the principal balance on the Loan to $188, 612.24. In September 2012, Plaintiff defaulted on the Loan for a second time. Defendant sent Plaintiff an acceleration letter on October 16, 2012, notifying her that she was in default and that the Loan would be accelerated if she did not make all required payments by December 19, 2012. Plaintiff, however, failed to make the required payments, and, as a result, foreclosure proceedings on the Home were initiated on February 6, 2013. On June 7, 2016, foreclosure counsel, on behalf of Defendant, sent Plaintiff a notice of foreclosure, notifying her that the Home was scheduled for sale on July 12, 2016.[2]

         On July 13, 2016, Plaintiff, proceeding pro se, [3] filed a complaint in the Davidson County Circuit Court (the "trial court"), raising three claims: (1) a claim for accounting of $55, 000; (2) a claim of illegal sale of a home; and (3) a demand that Defendant "Produce the Note." Defendant filed its answer on August 10, 2016. Plaintiff, however, filed a motion for default judgment against Defendant on November 7, 2016, alleging that she did not receive a copy of the answer until October 24, 2016. In its response in opposition to the motion, Defendant asserted that it had filed and served its answer within the thirty-day time limitation pursuant to Tennessee Rule of Civil Procedure 12.01. After a hearing on December 16, 2016, the trial court denied Plaintiff's motion for default judgment, finding that Defendant had filed its answer "within the thirty days prescribed by Rule 12.01 of the Tennessee Rules of Civil Procedure and had properly served its answer on Plaintiff when it sent the answer by U.S. Mail [to] Plaintiff's last known address." Additionally, the trial court found that Plaintiff had not been prejudiced by any delay that may have occurred.

         On December 22, 2016, Defendant filed a motion for summary judgment. Defendant also filed a memorandum in support of the motion, a statement of undisputed material facts, and the affidavit of Sarah Lee Stoneholder, Defendant's vice president of Loan Documentation. Defendant asserted that the undisputed facts showed that (1) Plaintiff took out the Loan serviced by Defendant, (2) Plaintiff defaulted on the Loan on multiple occasions, (3) the Home was sold on July 12, 2016 after Plaintiff received proper notice, and (4) there were no excess foreclosure proceeds to be paid to Plaintiff because she owed $217, 578.23 under the Loan and the Home was sold to a third party purchaser for $160, 000.00. The trial court set the hearing on the motion for February 17, 2017.

         On January 13, 2017, Plaintiff moved to postpone the summary judgment hearing "so that the Plaintiff will have the opportunity to receive a response to interrogatories as well as have a forensic audit completed on the deed in the presence of a Wells Fargo representative." On February 14, 2017, Defendant filed a reply in further support of its motion for summary judgment, asserting that Plaintiff failed to file a response to its statement of undisputed material facts as required by Tennessee Rules of Civil Procedure 56.03 and 56.06. Additionally, Defendant emphasized that it had already presented evidence that it had legal standing to enforce the Loan and noted that, while it had no obligation to do so, it would freely present the note and the deed of trust for inspection by Plaintiff and the trial court. On March 8, 2017, the trial court continued the hearing on Defendant's motion for summary judgment, requiring Plaintiff to file any supplemental responses before the case management conference, which was scheduled for March 28, 2017.

         On March 17, 2017, Plaintiff again moved to continue the summary judgment hearing until after April 11, 2017, this time so that she could obtain counsel. On April 3, 2017, the trial court continued the case management conference until April 24, 2017. Thereafter, the trial court entered a case management order on May 3, 2017 with the following conditions: (1) Plaintiff had until July 1, 2017 to obtain counsel; (2) if Plaintiff failed to secure counsel by that date, then all remaining discovery was required to be requested by July 12, 2017; and (3) the parties would reconvene on July 14, 2017, at which time the trial court would consider resetting Defendant's motion for summary judgment. Plaintiff failed to obtain counsel by July 1, 2017. At the July 14, 2017 conference, however, the trial court extended the date by which Plaintiff had to request discovery until August 1, 2017. Additionally, the trial court set Defendant's motion for summary judgment for September 22, 2017.

         On September 19, 2017, three days before the hearing on Defendant's motion, Plaintiff filed a motion for change of venue, alleging-for the first time-that, on December 16, 2016, Defendant's counsel, Brittany Simpson, and Judge Joe Binkley, Jr. engaged in impermissible ex parte communications that prevented Plaintiff from receiving a fair hearing on her motion for default judgment. Additionally, Plaintiff requested that Judge Binkley be disqualified or recuse himself from the underlying matter. A hearing was held on September 22, 2017, and, on October 9, 2017, the trial court, treating Plaintiff's motion as a Tennessee Supreme Court Rule 10B motion to recuse, denied the motion, finding that she had failed to provide any legal grounds for Judge Binkley's disqualification and that she had not filed the motion in a timely manner. ...

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