Betty C. Thomas v. Bank of America, N.A.

07/05/2017

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs April 3, 2017

BETTY C. THOMAS V. BANK OF AMERICA, N.A. ET AL.

Appeal from the Chancery Court for Williamson County

No. 41802 Michael Binkley, Judge

No. M2015-01849-COA-R3-CV

Plaintiff appeals the trial court’s decision to grant summary judgment to Defendants

related to the foreclosure of Plaintiff’s home. She contends the trial court erred in

summarily dismissing her complaint. She also contends the trial court abused its

discretion in denying Plaintiff’s motion to alter or amend. Defendants insist the trial court

should be affirmed in all respects. They also contend the appeal should be dismissed due

to Plaintiff’s failure to comply with Rule 27 of the Tennessee Rules of Appellate

Procedure and Rule 6 of the Rules of the Tennessee Court of Appeals. As Defendants

contend, Plaintiff’s brief fails to comply with our appellate rules of advocacy and for this

reason alone we would be justified in affirming the trial court. Nevertheless, we reviewed

the record and the trial court’s actions and affirm the trial court in all respects.

Accordingly, the trial court’s judgment is affirmed.

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

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which THOMAS

R. FRIERSON, II, and BRANDON O. GIBSON, JJ., joined.

Betty C. Thomas, Franklin, Tennessee, Pro Se.

Edmund Scott Sauer, Brian Robert Epling, and Harold Frederick Humbracht, Jr.,

Nashville, Tennessee, for the appellee, Bank of America of North Carolina.

Kelly Marie Telfeyan, Nashville, Tennessee, for the appellee, Seterus, Inc.

OPINION

Plaintiff Betty C. Thomas (“Thomas”) appeals the grant of summary judgment and

the trial court’s order denying Thomas’s motion to alter or amend. Thomas timely

appealed. Because Thomas failed to comply with Tenn. R. App. Proc. 27 and Rule 6 of

the Tennessee Court of Appeals, and because we find that the trial court properly granted

summary judgment, we dismiss the appeal.

On August 30, 2007, Plaintiff Betty C. Thomas (“Thomas”) executed a promissory

note in the amount of $124,500.00 to purchase the residence located at 796 Edwards

Circle, Franklin, Tennessee 37064. That same day, Thomas executed a deed of trust to

secure the note against the property. Section 3 of Thomas’s deed of trust specifically

provided that each month, Thomas shall pay an escrow charge that covered, among other

things, her property taxes.

In June 2012, Bank of America, N.A. (“Bank of America”), Thomas’s then-

current mortgage servicer, notified Thomas that she failed to timely pay her property

taxes. Bank of America informed Thomas that, if she did not pay her property taxes

within thirty days, Bank of America had the right to establish an escrow account to

advance the funds necessary to pay the property taxes, and that “[t]he escrow w[ould]

remain in effect for the life of the loan.” Due to Thomas’s inaction, Bank of America

advanced the funds necessary to pay Thomas’s property taxes and established an escrow

account. This was done in compliance with Section 3 of Thomas’s deed of trust. The

escrow account increased Thomas’s monthly loan payment by $326.44, making her

monthly amount owed $1,113.36. Thomas, however, refused to pay the additional

amount allocated to escrowed property taxes. Instead, she continued to make monthly

payments of $786.92, which covered only the principal and interest portions of the loan.

In October 2012, Bank of America informed Thomas that it would refuse to accept

payments for less than the full amount, so Thomas stopped making her mortgage

payments altogether. Bank of America declared Thomas’s loan in default and accelerated

the balance due on the loan. At this point, Bank of America transferred the servicing of

Thomas’s mortgage to Seterus, Inc. (“Seterus”), which began servicing Thomas’s

mortgage on or about December 1, 2012. That same day, Seterus initiated non-judicial

foreclosure proceedings against Thomas.

In February 2013, Thomas filed a lawsuit against Bank of America and Seterus

(together, “Defendants”). The parties agreed to halt the foreclosure proceedings until the

resolution of the instant matter. In her Complaint, Thomas alleged violations of the Fair

Debt Collections Practices Act, the Real Estate Settlement Procedures Act, the Tennessee

Consumer Protection Act, and the Equal Credit Opportunity Act. The crux of Thomas’s

claim was that Defendants lacked the authority to establish an escrow account for her

property taxes.

Defendants filed separate motions for summary judgment arguing that Thomas’s

deed of trust expressly allowed them to create an escrow account in the event that

Thomas failed to pay her property taxes. Defendants further argued that the creation of an

escrow account did not violate state or federal law. Thomas did not file responses to

either of Defendants’ motions for summary judgment, nor did she appear at the hearing

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for these motions. Thomas’s absence from the hearing was notable because the trial court

reset the hearing date sua sponte, solely as a courtesy to Thomas.1 In its order resetting

the summary judgment hearing, the trial court emphasized that under no circumstances

would the hearing be postponed again. The hearing took place on its rescheduled date,

and finding no genuine issue of material fact, the trial court granted Defendants’ motions

for summary judgment.

Thomas then moved to alter or amend the trial court’s judgment under Tenn. R.

Civ. P. 59.04, primarily citing her inability to appear at the summary judgment hearing.

The trial court denied Thomas’s motion, concluding that Thomas failed to respond to

either party’s motion for summary judgment and that the evidence presented in her

motion to alter or amend “d[id] not meet the threshold criteria” under Tenn. R. Civ. P.

59.04.

On September 18, 2015, Thomas filed a notice of appeal contesting the trial

court’s dismissal of her claims against Defendants related to the foreclosure on her home.

On January 4, 2017, noting “extraordinary delays” due primarily to Thomas’s failure to

comply with the appellate rules, this court informed Thomas that she had one final

opportunity to file her appellate brief by February 3, 2017, or else risked having her

appeal summarily dismissed. On February 3, Thomas filed a two-page brief, with several

documents attached to the brief. Although Thomas fails to identify any issues and fails to

provide an appropriate argument to address an issue, it appears she contends that the trial

court erred in granting Defendants’ motions for summary judgment and in denying her

motion to alter or amend. Each Defendant timely filed an appellee’s brief and both

contend the appeal should be dismissed due to Thomas’s failure to comply with Rule 27

of the Tennessee Rules of Appellate Procedure and Tennessee Court of Appeals Rule 6.

They also contend the trial court should be affirmed in all respects.

ANALYSIS

I. WAIVER OF APPELLATE REVIEW

We note at the outset that although Thomas has been represented by counsel

during various portions of this litigation, she now appears before this court pro se.

Regarding pro se litigants, this court has explained:

Parties who decide to represent themselves are entitled to fair and

equal treatment by the courts. The courts should take into account that

many pro se litigants have no legal training and little familiarity with the

judicial system. However, the courts must also be mindful of the boundary

between fairness to a pro se litigant and unfairness to the pro se litigant’s

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Thomas had previously requested, and been denied, a continuance.

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adversary. Thus, the courts must not excuse pro se litigants from complying

with the same substantive and procedural rules that represented parties are

expected to observe.

The courts give pro se litigants who are untrained in the law a certain

amount of leeway in drafting their pleadings and briefs. Accordingly, we

measure the papers prepared by pro se litigants using standards that are less

stringent than those applied to papers prepared by lawyers.

Pro se litigants should not be permitted to shift the burden of the

litigation to the courts or to their adversaries. They are, however, entitled to

at least the same liberality of construction of their pleadings that Tenn. R.

Civ. P. 7, 8.05, and 8.06 provide to other litigants. Even though the courts

cannot create claims or defenses for pro se litigants where none exist, they

should give effect to the substance, rather than the form or terminology, of

a pro se litigant’s papers.

Young v. Barrow, 130 S.W.3d 59, 62-63 (Tenn. Ct. App. 2003) (internal citations

omitted).

Both the trial court and this court have afforded Thomas leniency, granting

numerous extensions to allow Thomas additional time to deal with her ongoing health

issues, retain counsel, and respond to pleadings. This appeal has already been delayed for

more than a year due primarily to Thomas’s failure to comply with the time limits

provided by the Tennessee Rules of Appellate Procedure and the prior orders of this

court.

Despite being instructed that no additional extensions would be granted, Thomas

requested an extension to file her appellate brief. In our denial of that request, we

informed Thomas that “failure to file a brief by February 3, 2017, shall result in dismissal

of the appeal without further notice.” On the final due date of February 3, 2017, Thomas

filed a two-page brief with several documents attached. Thomas’s appellate brief filed

with this court fails to comply with basic filing rules.

Tenn. R. App. P. 27 states in pertinent part:

(a) Brief of the Appellant. The brief of the appellant shall contain under

appropriate headings and in the order here indicated:

(1) A table of contents, with references to the pages in the brief;

(2) A table of authorities, including cases (alphabetically

arranged), statutes and other authorities cited, with references

to the pages in the brief where they are cited;

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....

(4) A statement of the issues presented for review;

(5) A statement of the case, indicating briefly the nature of the

case, the course of proceedings, and its disposition in the

court below;

(6) A statement of facts, setting forth the facts relevant to the

issues presented for review with appropriate references to the

record;

(7) An argument, which may be preceded by a summary of

argument, setting forth:

(A) the contentions of the appellant with respect to the

issues presented, and the reasons therefor, including

the reasons why the contentions require appellate

relief, with citations to the authorities and appropriate

references to the record (which may be quoted

verbatim) relied on; and

(B) for each issue, a concise statement of the applicable

standard of review (which may appear in the

discussion of the issue or under a separate heading

placed before the discussion of the issues) ....

(8) A short conclusion, stating the precise relief sought.

Similarly, R. Tenn. Ct. App. 6 provides in pertinent part:

(a) Written argument in regard to each issue on appeal shall contain:

(1) A statement by the appellant of the alleged erroneous action

of the trial court which raises the issue and a statement by the

appellee of any action of the trial court which is relied upon

to correct the alleged error, with citation to the record where

the erroneous or corrective action is recorded.

(2) A statement showing how such alleged error was seasonably

called to the attention of the trial judge with citation to that

part of the record where appellant’s challenge of the alleged

error is recorded.

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(3) A statement reciting wherein appellant was prejudiced by

such alleged error, with citations to the record showing where

the resultant prejudice is recorded.

(4) A statement of each determinative fact relied upon with

citation to the record where evidence of each such fact may

be found.

(b) No complaint of or reliance upon action by the trial court will be

considered on appeal unless the argument contains a specific

reference to the page or pages of the record where such action is

recorded. No assertion of fact will be considered on appeal unless

the argument contains a reference to the page or pages of the record

where evidence of such fact is recorded.

“Courts have routinely held that the failure to make appropriate references to the

record and to cite relevant authority in the argument section of the brief as required by

Rule 27(a)(7) constitutes a waiver of the issue.” Bean v. Bean, 40 S.W.3d 52, 55 (Tenn.

Ct. App. 2000) (listing cases). All filers, including pro se filers, must comply with Rule

27’s basic requirements. Murray v. Miracle, 457 S.W.3d 399, 404 (Tenn. Ct. App. 2014)

(finding that a pro se filer’s failure “to comply in any significant way with Tenn. R. App.

P. 27” resulted in waiver on appeal).

In the instant matter, Thomas filed a two-page document as her appellate brief.

Both pages contain the same heading, “Relevant Facts,” with no actual citation to the

record or case law. Instead, the first page details issues with Thomas’ former counsel, her

inability to locate certain documents, and the delivery of a motion for hearing in her case

to opposing counsel. The second page provides a short summary regarding the

origination of her loan and suggests that “evidence will show the documents associated

with Bank of America and Country Wide [sic] are seriously flawed.” Further, Thomas

attaches documents to her filing, which purport to support her case.

Thomas’s brief fails to comply with the basic requirements of the Tennessee Rules

of Appellate Procedure and the Tennessee Court of Appeals Rules in that it completely

lacks a table of contents, table of authorities, statement of the issues, statement of the

case, and statement of facts. See Tenn. R. App. P. 27(a)(1)-(2),(4)-(6). Her brief is devoid

of any citations to the record or pertinent cases, and most importantly, it fails to identify

the issues that Thomas seeks to appeal. Although we are mindful of Thomas’s pro se

status and have attempted to give her the benefit of the doubt when possible, we cannot

write her brief for her nor can we create arguments or issues for her where her brief fails

to contain any coherent argument. Based upon Thomas’s failure to comply with Tenn. R.

App. P. 27 and R. Tenn. Ct. App. 6, we conclude that Thomas has waived any issues

raised, and the appeal should be dismissed.

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II. GRANT OF SUMMARY JUDGMENT

Notwithstanding the fact that Thomas waived all issues on appeal because of her

failure to comply with Tenn. R. App. P. 27 and R. Tenn. Ct. App. 6, we prefer to rule on

the merits of appeals when possible. Having reviewed the record in the context of the

issues we believe Thomas was attempting to raise, we find no error.

This court reviews a trial court’s decision on a motion for summary judgment de

novo without a presumption of correctness. Rye v. Women’s Care Ctr. of Memphis,

MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015) (citing Bain v. Wells, 936 S.W.2d 618, 622

(Tenn. 1997)). Accordingly, this court must make a fresh determination of whether the

requirements of Tenn. R. Civ. P. 56 have been satisfied. Id.; Hunter v. Brown, 955

S.W.2d 49, 50-51 (Tenn. 1997). In so doing, we consider the evidence in the light most

favorable to the non-moving party and draw all reasonable inferences in that party’s

favor. Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002).

Summary judgment should be granted when “the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Tenn. R. Civ. P. 56.04. When the party moving for

summary judgment does not bear the burden of proof at trial, it may satisfy its burden of

production “either (1) by affirmatively negating an essential element of the nonmoving

party’s claim or (2) by demonstrating that the nonmoving party’s evidence at the

summary judgment stage is insufficient to establish the nonmoving party’s claim or

defense.” Rye, 477 S.W.3d at 264 (emphasis in original).

When a motion for summary judgment is made and supported as provided in

Tenn. R. Civ. P. 56, the nonmoving party may not rest on the allegations or denials in its

pleadings. Id. Instead, the nonmoving party must respond with specific facts showing that

there is a genuine issue for trial. Id. A fact is material “if it must be decided in order to

resolve the substantive claim or defense at which the motion is directed.” Byrd v. Hall,

847 S.W.2d 208, 215 (Tenn. 1993). A “genuine issue” exists if “a reasonable jury could

legitimately resolve that fact in favor of one side or the other.” Id.

In this case, Thomas did not file responses to either of Defendants’ motions for

summary judgment, nor did she appear at the hearing for these motions. Thomas’s

absence from the hearing was significant because she had previously requested, and been

denied, a continuance of the summary judgment hearing. However, the trial court reset

the hearing date sua sponte. In its order resetting the hearing, the trial court emphasized

that the summary judgment hearing was being reset solely as a courtesy to Thomas, and

that under no circumstances would the hearing be postponed again. As a result of her

inaction, Thomas failed to set forth specific facts showing that there was a genuine issue

for trial with regard to Defendants’ alleged violations of the Fair Debt Collections

Practices Act, the Real Estate Settlement Procedures Act, the Tennessee Consumer

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Protection Act, and the Equal Credit Opportunity Act. In particular, Thomas provided no

evidence that Defendants improperly escrowed her property taxes after she failed to

timely pay them. Therefore, the trial court properly granted Defendants’ motions for

summary judgment.

III. MOTION TO ALTER OR AMEND

With regard to Thomas’s motion to alter or amend, we review a trial court’s denial

of a Tenn. R. Civ. P. 59.04 motion to alter or amend a judgment for abuse of discretion.

Chambliss v. Stohler, 124 S.W.3d 116, 120 (Tenn. Ct. App. 2003) (citing Bradley v.

McLeod, 984 S.W.2d 929, 933 (Tenn. Ct. App. 1998)). Having reviewed the record we

find no abuse of discretion in denying Thomas’s motion to alter or amend.

IN CONCLUSION

The judgment of the trial court is affirmed in all respects and this matter is

remanded with costs of appeal assessed against the appellant, Betty C. Thomas.

________________________________

FRANK G. CLEMENT JR., P.J., M.S.

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