Gwendolyn H. King v. Bank of America, N.A.

12/29/2020

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs October 1, 2020

GWENDOLYN H. KING v. BANK OF AMERICA, N.A., ET AL.

Appeal from the Chancery Court for Shelby County

No. CH-18-0580-3 JoeDae L. Jenkins, Chancellor

No. W2018-01177-COA-R3-CV

Following two unsuccessful lawsuits filed by the instant plaintiff in federal district court,

a foreclosure on the plaintiff’s home, and a successful unlawful detainer action filed in

general sessions court by the purchaser of the home at foreclosure, the plaintiff filed this

action against multiple defendants in the chancery court, seeking an order setting aside

the foreclosure and a temporary injunction prohibiting her eviction. Following a hearing,

the trial court dismissed the instant action on the basis of res judicata. The plaintiff has

appealed. Discerning no reversible error, we affirm.

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

Affirmed; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which FRANK G.

CLEMENT, JR., P.J., M.S., and KENNY W. ARMSTRONG, J., joined.

Gwendolyn H. King, Memphis, Tennessee, Pro Se.

Frankie N. Spero, Nashville, Tennessee, for the appellee, Bank of America, N.A.

S. Joshua Kahane, Memphis, Tennessee, for the appellees, ARVM 5, LLC, and Main

Street Renewal, LLC.

Kavita Shelat, Memphis, Tennessee, for the appellees, The Bank of New York Mellon

and Select Portfolio Servicing, Inc.

Natalie Brown, Memphis, Tennessee, for the appellee, Rubin Lublin, LLC.

OPINION

I. Factual and Procedural Background

The plaintiff, Gwendolyn H. King, acting without benefit of counsel, commenced

this action by filing a complaint in the Shelby County Chancery Court (“trial court”) on

April 18, 2018, seeking, inter alia, an order setting aside the foreclosure sale of her home,

located at 1905 Kilarney Avenue in Memphis (“the Property”), and a temporary

injunction prohibiting her eviction from the Property. Ms. King named as defendants

Bank of America, N.A. (“Bank of America”); The Bank of New York Mellon f/k/a The

Bank of New York for the Certificateholders of the CWABS, Inc., Asset Backed

Certificates, Series 2004-15 (“New York Mellon”); Select Portfolio Servicing, Inc.

(“Select Portfolio”); ARVM 5, LLC (“ARVM”); Main Street Renewal (“Main Street”);

and Rubin Lublin, LLC (“Rubin Lublin”) (collectively, “Defendants”).

Ms. King averred in the complaint that the “original loan” (“the Loan”) on the

Property had been financed in 1986 and that her ex-husband, Harold King, had

refinanced the Loan in 2004 through Florida Bancorp. According to the complaint, the

Loan was transferred to Countrywide Financial Corporation (“Countrywide”), and upon

Bank of America’s purchase of Countrywide, Bank of America sent Mr. King a notice of

acceleration in October 2008 after the loan had fallen into default. The Loan was

released to Bank of America for mortgage servicing in 2011. Ms. King alleged that in

July 2015, Bank of America had “illegally transferred” the Loan to Select Portfolio

because the transfer was purportedly time-barred by operation of the federal Fair Debt

Collection Practices Act (“FDCPA”), codified at 15 U.S.C. § 1692 et seq.

Ms. King averred in her complaint that concomitant with the entry of a divorce

decree dissolving the Kings’ marriage, Mr. King had executed a quitclaim deed

conveying the Property to her in January 2013. Ms. King asserted that although not a

borrower herself on the refinanced loan, she was the owner of the Property at that point

and should have been protected from foreclosure. The November 2004 deed of trust

(“the Deed of Trust”), which is in the appellate record as an attachment to a pleading

filed by ARVM and Main Street, indicates that the borrowers were “Harold G. King and

Gwendolyn H. King, husband and wife,” who both executed the document. It is

undisputed, however, that Ms. King did not execute the promissory note related to the

Deed of Trust and that under the terms of the Deed of Trust, she was co-signing “only to

mortgage, grant and convey [her] interest in the Property.” The Deed of Trust also

indicates that “Cash Out Mortgage Corp., a Florida Corporation d/b/a Sound Mortgage

Group” (“Cash Out Mortgage”) was the lender, Gail C. Victory was the trustee, and the

amount borrowed was $84,000. The Deed of Trust was recorded by the Shelby County

Register of Deeds on November 29, 2004.

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New York Mellon, which had been assigned the Deed of Trust by Cash Out

Mortgage in July 2011, foreclosed on the Property on October 5, 2017. A substitute

trustee’s deed, also in the appellate record as an attachment to a pleading filed by ARVM

and Main Street, indicates that Rubin Lublin had become a “duly appointed” substitute

trustee in the place of Gail C. Victory. Following purported nonpayment of the Loan

after a demand made to the Kings, the substitute trustee’s deed indicates conveyance of

the Property at the foreclosure sale to ARVM for a total purchase price in the amount of

$60,000. The substitute trustee’s deed was duly recorded on November 8, 2017. Ms.

King averred in her complaint that she had been served with a detainer warrant on March

8, 2017, with contact information for Main Street, which was undisputedly serving as

ARVM’s manager of the Property.

In her complaint, Ms. King alleged that New York Mellon had not been the

rightful holder of the Deed of Trust at the time of the foreclosure sale, and she asserted

claims of (1) violation of the FDCPA, (2) illegal flipping, (3) constructive fraud, (4)

slander of title, (5) fraud, (6) violations of statutes of limitation for sale of Property

pursuant to Tennessee Code Annotated §§ 28-2-111(a) (2017) and 28-3-109(a)(3) (2017),

(7) wrongful foreclosure, and (8) taint on the Property’s chain of title. Ms. King

requested that the trial court (1) set aside the foreclosure sale and eviction, (2) award her

title to the Property, (3) release the lien, (4) cancel the note related to the Deed of Trust,

(5) remove “all negative reporting to credit bureaus,” (6) award “maximum compensatory

and punitive damages,” and (7) award to her the costs involved in the litigation. Upon

Ms. King’s request, the trial court entered a temporary restraining order against Bank of

America’s eviction proceedings pending a hearing set for May 9, 2018.

On May 4, 2018, ARVM and Main Street filed a motion to dismiss, pursuant to

Tennessee Rule of Civil Procedure 12.02(6), and a response in opposition to Ms. King’s

request for a temporary restraining order. In support of the motion to dismiss, they

asserted that Ms. King had failed to state a claim upon which relief could be granted

based upon the doctrine of res judicata. Also asserting that ARVM was a bona fide

purchaser of the Property, ARVM and Main Street requested that the trial court dismiss

Ms. King’s complaint with prejudice, deny her application for injunctive relief, and/or

release ARVM and Main Street from this action.

Among the documents attached to ARVM and Main Street’s response was a copy

of an order entered by the United States Court of Appeals for the Sixth Circuit (“Sixth

Circuit”) on March 28, 2018, denying a motion Ms. King had filed in that court to

proceed in forma pauperis on appeal from a dismissal of an action she had filed in the

United States District Court for the Western District of Tennessee (“district court”) in

June 2017. In the order, the Sixth Circuit noted that the magistrate’s determination that

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Ms. King’s “claims were barred by res judicata because she had previously filed a

complaint in the Shelby County Chancery Court against the Bank of New York Mellon

and Bank of America which was removed to the United States District Court for the

Western District of Tennessee and eventually dismissed on a motion by defendants” had

been adopted by the district court judge.

The Sixth Circuit further noted that the previous action, King v. Bank of N.Y.

Mellon, No. 2:15-cv-02432-SHM-dkv (W.D. Tenn. Feb. 12, 2016) (“First Action”), had

been filed by Ms. King and Mr. King in 2015, alleging “negligence and violations of

HAMP [Home Affordable Modification Program], the SCRA [Servicemembers Civil

Relief Act], and the Tennessee Consumer Protection Act,” as well as alleging violation of

“Tennessee law by not entering into mandatory mediation with [Ms. King] and

fraudulently corroborat[ing] with Memphis Area Legal Services to prevent [Ms. King’s]

efforts to save her home from foreclosure.” According to the Sixth Circuit’s March 2018

order, the district court had denied a motion filed by Ms. King for an extension of time in

which to file objections to the magistrate’s findings and a motion for reconsideration.

The district court had also certified that an appeal could not be taken in good faith,

pursuant to 28 U.S.C. § 1915 (a)(3), denying Ms. King’s motion to proceed in forma

pauperis in the second federal action (“Second Action”) upon determining that Ms.

King’s “appeal lack[ed] an arguable basis in law.” As Defendants note, Ms. King had

filed her complaint in the Second Action contemporaneously with her untimely notice of

appeal in the First Action.

In the instant action, Bank of America subsequently filed a response and notice

that it was joining in the motion to dismiss filed by ARVM and Main Street, along with

copies of additional pleadings and orders related to the First Action and Second Action.

Adding to ARVM and Main Street’s res judicata argument, Bank of America asserted

that the instant action was precluded not only by the resolution on the merits of the First

Action and Second Action, but also by the adjudication on the merits of a 2017 detainer

action against Ms. King (“Detainer Action”), which had been filed in the Shelby County

General Sessions Court (“general sessions court”) by Main Street on February 27, 2018.

The general sessions court had entered a possessory judgment in favor of Main Street

concerning the Property in the Detainer Action on April 18, 2018, the same day that Ms.

King filed the instant action.

The trial court in the instant action conducted a hearing on May 9, 2018, during

which the parties presented oral arguments. The trial court entered a judgment on May

18, 2018, dismissing Ms. King’s complaint with prejudice, denying her application for a

temporary injunction, and dissolving and terminating the previously entered temporary

restraining order. The trial court noted that upon oral motion during the hearing, it had

allowed Select Portfolio, New York Mellon as trustee, and Rubin Lublin to join in and

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adopt the two previously filed motions to dismiss. In its judgment, the trial court

authorized Main Street, on behalf of ARVM, “to proceed with filing a writ of possession

through the [general sessions court] and executing a forcible dispossession of [Ms. King]

from [the Property].” In dismissing Ms. King’s complaint and finding that she would not

be able to demonstrate that she was entitled to a Tennessee Rule of Civil Procedure 65.04

temporary injunction, the trial court found that Ms. King’s claims were “all barred and

precluded under the doctrine of res judicata by virtue of the final judgments on the merits

entered” in the First Action, Second Action, and Detainer Action. The trial court

specifically found that “[t]hese three final judgments on the merits were rendered by

courts of competent jurisdiction, and the three lawsuits in which these judgments were

entered involved the same parties or their privies and the same cause of action as [Ms.

King’s] current action.”

Ms. King filed a “Motion to Request Reconsideration” of the trial court’s

judgment on June 18, 2018, requesting a new hearing. Two days later, she filed a notice

of appeal to this Court, and Defendants subsequently filed a joint response in opposition

to the motion for reconsideration in the trial court. Defendants attached to their response

a copy of an order entered by the Shelby County Circuit Court (“circuit court”) on June

19, 2018, dismissing with prejudice an appeal that Ms. King had filed in the Detainer

Action. Following a hearing, the circuit court found that Ms. King had filed her appeal

from general sessions court outside the ten-day appeal period provided under Tennessee

Code Annotated §§ 29-18-128 (2012) and 27-5-108 (Supp. 2020) and without paying the

bond or costs required by statute. Upon review of the arguments presented, “as well as

the briefs and motions filed by the parties, the pleadings, and the record in this case,” the

circuit court also found that Ms. King’s claims were barred by res judicata.

In the instant action, the trial court entered an order denying Ms. King’s motion to

reconsider on July 10, 2018. This Court subsequently treated Ms. King’s notice of

appeal, which had been premature in light of the filing of her motion to reconsider, as

timely pursuant to Tennessee Rule of Appellate Procedure 4(d) (“A prematurely filed

notice of appeal shall be treated as filed after the entry of the judgment from which the

appeal is taken and on the day thereof.”). In response to a notice that no transcript would

be filed by Ms. King and a motion to strike subsequently filed by Defendants, the trial

court entered an order on November 2, 2018, granting Defendants’ motion to strike

filings attached to Ms. King’s notice that the court found to be “procedurally improper.”

The trial court concluded that pursuant to Tennessee Rule of Appellate Procedure 24(d),

“no transcript or statement of the evidence is to be filed in this action with respect to [Ms.

King’s] appeal.” We note that Ms. King has filed a “Statement of Evidence” with her

appellate brief that includes several documents not in the record. In light of the trial

court’s ruling and pursuant to Tennessee Rule of Appellate Procedure 24, this Court will

not consider Ms. King’s statement of the evidence. See, e.g., Jennings v. Sewell-Allen

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Piggly Wiggly, 173 S.W.3d 710, 712 (Tenn. 2005) (“This attachment [to an appellate

brief] . . . does not serve to supplement the record on appeal.”).1

During the pendency of this appeal and upon Bank of America’s motion to

dismiss, this Court entered an order on January 31, 2019, denying the motion to dismiss

as “premature and inadvisable.” Following the filing of several motions but no appellate

brief in this Court by Ms. King, she attempted to file a “Motion to Set Aside and Void

Detainer Warrant” in May 2019, which this Court did not accept for filing because it

appeared to be filed pursuant to Tennessee Rule of Civil Procedure 60.02. Ms. King

subsequently filed a motion to “stay” appellate proceedings. This Court entered an Order

on July 15, 2019, denying Ms. King’s request to stay appellate proceedings and directing

her to file her principal brief within ten days of the order’s entry or show cause why the

appeal should not be dismissed.

On July 29, 2019, Ms. King filed her principal brief and also filed a motion to,

inter alia, “transfer” to the trial court the motion to set aside that she had previously

attempted to file. This Court entered an order on August 1, 2019, granting the portion of

Ms. King’s motion that it interpreted as a motion to late file her appellate brief but noting

that this Court could not “transfer” a motion that it had not accepted for filing. This

Court eventually entered an order on October 22, 2019, granting another motion filed by

Ms. King that it treated as one “to remand this appeal to the trial court for the limited

purpose of entertaining [her] Tennessee Rule of Civil Procedure 60.02 motion.” Upon

the trial court’s subsequent filing of two affidavits of dormancy, certifying that Ms. King

had not filed a Rule 60.02 motion in the trial court, this Court resumed jurisdiction over

the appeal.

II. Issues Presented

Ms. King presents three issues on appeal, which we have reordered and restated as

follows:

1. Whether the trial court erred by dismissing Ms. King’s claims upon

finding that Ms. King had failed to state a claim upon which relief

could be granted under the doctrine of res judicata.2

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We note that Defendants have filed an “Appendix” to their brief, appearing to consist entirely of

documents that are already in the record. We emphasize that this Court reviews the record on appeal as it

is filed by the trial court. See Tenn. R. App. P. 13(c); Tenn. R. App. P. 24(a), (e); Jennings, 173 S.W.3d

at 712.

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Ms. King has stated this issue as: “Whether the Judge considered any of King’s claims.”

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2. Whether the trial court erred by denying due process rights to Ms.

King.

3. Whether the trial court abused its discretion by revoking the

temporary restraining order.

Defendants have presented the following additional issue:

4. Whether the trial court abused its discretion in denying Ms. King’s

application for a temporary injunction pursuant to Tennessee Rule of

Civil Procedure 65.04.

III. Standard of Review

As our Supreme Court has explained with regard to motions seeking dismissal of a

complaint pursuant to Tennessee Rule of Civil Procedure 12.02(6):

A Rule 12.02(6) motion challenges only the legal sufficiency of the

complaint, not the strength of the plaintiff’s proof or evidence. The

resolution of a 12.02(6) motion to dismiss is determined by an examination

of the pleadings alone. A defendant who files a motion to dismiss “‘admits

the truth of all of the relevant and material allegations contained in the

complaint, but . . . asserts that the allegations fail to establish a cause of

action.’”

In considering a motion to dismiss, courts “‘must construe the

complaint liberally, presuming all factual allegations to be true and giving

the plaintiff the benefit of all reasonable inferences.’” A trial court should

grant a motion to dismiss “only when it appears that the plaintiff can prove

no set of facts in support of the claim that would entitle the plaintiff to

relief.” We review the trial court’s legal conclusions regarding the

adequacy of the complaint de novo.

Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011)

(internal citations omitted). As to res judicata, “[a] trial court’s decision that a claim is

barred by the doctrine of res judicata or claim preclusion involves a question of law

which will be reviewed de novo on appeal without a presumption of correctness.”

Jackson v. Smith, 387 S.W.3d 486, 491 (Tenn. 2012) (citing In re Estate of Boote, 198

S.W.3d 198 S.W.3d 699, 719 (Tenn. Ct. App. 2005)).

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A “trial court’s decision regarding whether to grant injunctive relief is reviewed

under an abuse of discretion standard.” Vintage Health Res., Inc. v. Guiangan, 309

S.W.3d 448, 466 (Tenn. Ct. App. 2009). Appellate courts review a trial court’s

discretionary decision to determine “(1) whether the factual basis for the decision is

properly supported by evidence in the record, (2) whether the lower court properly

identified and applied the most appropriate legal principles applicable to the decision, and

(3) whether the lower court’s decision was within the range of acceptable alternative

dispositions.” Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010) (citing

Flautt & Mann v. Council of Memphis, 285 S.W.3d 856, 872-73 (Tenn. Ct. App. 2008)).

In reviewing pleadings, we “must give effect to the substance, rather than the form

or terminology of a pleading.” Stewart v. Schofield, 368 S.W.3d 457, 463 (Tenn. 2012)

(citing Abshure v. Methodist Healthcare-Memphis Hosp., 325 S.W.3d 98, 104 (Tenn.

2010)). Pleadings “prepared by pro se litigants untrained in the law should be measured

by less stringent standards than those applied to pleadings prepared by lawyers.”

Stewart, 368 S.W.3d at 462 (citing Carter v. Bell, 279 S.W.3d 560 568 (Tenn. 2009);

Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. App. 2003); Young v. Barrow, 130

S.W.3d 59, 63 (Tenn. Ct. App. 2003)). Although parties proceeding without benefit of

counsel are “entitled to fair and equal treatment by the courts,” we “must not excuse pro

se litigants from complying with the same substantive and procedural rules that

represented parties are expected to observe.” Hessmer v. Hessmer, 138 S.W.3d 901, 903

(Tenn. Ct. App. 2003).

IV. Res Judicata

Ms. King contends that the trial court erred by dismissing her complaint for failure

to state a claim upon which relief could be granted based on the doctrine of res judicata.

As stated in her issue, Ms. King has raised a question as to whether the trial court

“considered any of [her] claims” before dismissing her complaint. Upon careful review,

we conclude that the trial court properly considered Ms. King’s claims in determining

that this action was barred by res judicata.

Our Supreme Court has explained the doctrine and essential requirements of res

judicata as follows:

The doctrine of res judicata or claim preclusion bars a second suit

between the same parties or their privies on the same claim with respect to

all issues which were, or could have been, litigated in the former suit.

Creech v. Addington, 281 S.W.3d 363, 376 (Tenn. 2009); Richardson v.

Tennessee Bd. of Dentistry, 913 S.W.2d 446, 459 (Tenn. 1995) (quoting

Goeke v. Woods, 777 S.W.2d 347, 349 (Tenn. 1989)). It is a “rule of rest,”

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Moulton v. Ford Motor Co., 533 S.W.2d 295, 296 (Tenn. 1976), and it

promotes finality in litigation, prevents inconsistent or contradictory

judgments, conserves judicial resources, and protects litigants from the cost

and vexation of multiple lawsuits. In re Estate of Boote, 198 S.W.3d 699,

718 (Tenn. Ct. App. 2005); Sweatt v. Tennessee Dep’t of Corr., 88 S.W.3d

567, 570 (Tenn. Ct. App. 2002).

The party asserting a defense predicated on res judicata or claim

preclusion must demonstrate (1) that the underlying judgment was rendered

by a court of competent jurisdiction, (2) that the same parties or their

privies were involved in both suits, (3) that the same claim or cause of

action was asserted in both suits, and (4) that the underlying judgment was

final and on the merits. Lien v. Couch, 993 S.W.2d 53, 56 (Tenn. Ct. App.

1998); see also Lee v. Hall, 790 S.W.2d 293, 294 (Tenn. Ct. App. 1990).

Jackson v. Smith, 387 S.W.3d 486, 491 (Tenn. 2012).

As the Jackson Court noted, res judicata “is one of the affirmative defenses that

must be included in the defendant’s answer,” pursuant to Tennessee Rule of Civil

Procedure 8.03. Id. at 491. However, a Tennessee Rule of Civ. P. 12.02(6) motion to

dismiss may “be used as a vehicle to assert an affirmative defense” when “the

applicability of the defense . . . ‘clearly and unequivocally appear[s] on the face of the

complaint.’” Id. at 492 (quoting Givens v. Mullikin ex rel. Estate of McElwaney, 75

S.W.3d 383, 404 (Tenn. 2002)).

In this case, Defendants asserted res judicata as a basis for dismissal in their

respective motions to dismiss, utilizing those motions as vehicles to assert the affirmative

defense. We determine this to have been proper because in Ms. King’s complaint, she

referenced the First Action and the Second Action, noting that at the time of her filing the

instant action, resolution of her appeal was “still pending in the Sixth Circuit Court.” In

her complaint, Ms. King also detailed the general sessions court proceedings involving

the Detainer Action, stating that at the time of her complaint’s filing, “[t]he [Detainer]

Case was also appealed” to circuit court. See Jackson, 387 S.W.3d at 492 (explaining

that in order for res judicata to be properly raised in a defendant’s motion to dismiss, “the

plaintiff’s own allegations in the complaint must show that an affirmative defense exists

and that this defense legally defeats the claim for relief.”).

In determining that Ms. King’s instant complaint was precluded by res judicata,

the trial court found in pertinent part:

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[Ms. King’s] claims in the Complaint, including, without limitation,

her claims relating to the servicing of the subject loan, the alleged wrongful

and unlawful foreclosure proceedings, the foreclosure sale and purchase of

the subject property, and the alleged wrongful eviction lawsuit and

subsequent dispossession efforts, are all barred and precluded under the

doctrine of res judicata by virtue of the final judgments on the merits

entered in the following three (3) prior lawsuits: King v. The Bank of New

York Mellon, et al., Case No. 2:15-cv-02432 (U.S. District Court, Western

District of Tennessee); King v. The Asset-Bank of New York Mellon f/k/a

The Bank of New York et al., Case No. 2:17-cv-2402 (U.S. District Court,

Western District of Tennessee), and the unlawful detainer action filed by

Defendant Main Street Renewal, LLC on behalf of Defendant ARVM 5,

LLC in the General Sessions Court for Shelby County, Tennessee, Docket

No. 1912751, in which a final judgment granting possession of the subject

property to ARVM 5, LLC was entered on April 18, 2018. These three

final judgments on the merits were rendered by courts of competent

jurisdiction, and the three lawsuits in which these judgments were entered

involved the same parties or their privies and the same cause of action as

[Ms. King’s] current action.

On appeal, Ms. King has presented no argument to refute the trial court’s findings

that the prior three judgments were (1) rendered by courts of competent jurisdiction, (2)

involved the same parties or their privies as in the instant action, (3) involved the same

claims or causes of action, and (4) were final. See Jackson, 387 S.W.3d at 491. At the

outset, we note that upon a thorough review of the record, we discern no reason to disturb

the trial court’s findings as to these elements of competent jurisdiction, the parties or their

privies, the same claims or causes of action, and the finality of the judgments in the prior

three lawsuits. In the argument section of her appellate brief devoted to res judicata, Ms.

King has essentially reiterated the claims stated in her complaint, asserting relevant to res

judicata only that the prior lawsuits were not adjudicated “on the merits.” See id.. We

disagree.

In the First Action, the district court stated in its final judgment that it had adopted

the magistrate’s report and recommendation to dismiss the Kings’ complaint upon de

novo review and with consideration of “the entire record of the proceedings.”

Summarizing the Kings’ claims in the First Action and the magistrate’s rationale for

dismissing them, the district court stated in pertinent part:

[The magistrate] construed the first amended complaint as asserting

claims under the Home Affordable Modification Program (“HAMP”), 12

U.S.C. § 5201; the [Servicemembers] Civil Relief Act (“SCRA”), 50

10

U.S.C. § [3901 et seq.]; the Tennessee Consumer Protection Act (“TCPA”),

Tenn. Code Ann. [§] 47-18-104(b)(27); and Tennessee state law. [The

Kings] also claimed that Defendants “fraudulently corroborated with

[Memphis Area Legal Services] to stall, mislead and circumvent [Ms.

King] in her efforts to save her home.”

As for the HAMP claim, [the magistrate] correctly noted that

homeowners do not have a private right of action to enforce the terms of

HAMP. [See Campbell v. Nationstar Mortg., 611 F. App’x 288, 298 (6th

Cir. 2015)]. [The Kings] also do not have a private right of action under

the TCPA. [Tenn. Code Ann. § 47-18-104(b)(27).]

[The Kings] failed to state a claim under the SCRA because any

protection proved by that Act applies only to an obligation on real property

that “originated before the period of the servicemember’s military service.”

[50 U.S.C.[A.] § [3953](a)(1).] [Mr. King’s] military service pre-dates his

execution of the Note and Deed of Trust that are at issue in this case.

[The Kings] failed to state a common law negligence claim because

there is no common law duty [“]on financial institutions with respect to

their customers, depositors, or borrowers in Tennessee.” [See Vaughter v.

BAC Home Loans Serving, LP, 2012 WL 162398, at *4 (M.D. Tenn. Jan.

19, 2012) (quoting Permobil, Inc. v. Am. Express Travel Related Servs. Co.,

571 F. Supp. 2d 825, 842 (M.D. Tenn. 2008)).] Finally, [the Kings] failed

to “state with particularity the circumstances constituting fraud.” [Fed. R.

Civ. P. 9(b). See also Bovee v. Coopers & Lybrand C.P.A., 272 F.3d 356,

361 (6th Cir. 2001) (“Generalized and conclusory allegations that the

Defendants’ conduct was fraudulent do not satisfy Rule 9(b).”)]

[The Kings] have presented no facts or law to show that the Report

and Recommendation should not be adopted.

(Footnotes converted to bracketed citations.)

Although Ms. King attempted to appeal this final judgment, the Sixth Circuit in an

order entered on July 20, 2017, dismissed the appeal for lack of subject matter

jurisdiction due to untimeliness, confirming that the district court’s order in the First

Action was indeed final upon the passage of the time for initiating an appeal pursuant to

Federal Rule of Appellate Procedure 4(a). We determine that without question, the First

Action was adjudicated on the merits by the District Court. Moreover, we note that if all

elements of res judicata were satisfied, the adjudication on the merits of the First Action

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was sufficient to bar the instant action irrespective of the Second Action and the Detainer

Action.

Although the element of the same parties or their privies has not been expressly

raised by Ms. King, we note that Defendants in the instant action were either defendants

in the First Action, specifically Bank of America and New York Mellon, or they are now

privies in interest with one of the defendants in the First Action. As this Court has

explained concerning the definition of privies:

In Cotton v. Underwood, 223 Tenn. 122, 442 S.W.2d 632 (1969), our

Supreme Court stated that “privies are not only those who are so related by

blood and law, but are those who are so related by reason of the facts

showing an identity of interest.” Id. at 634-35. The Court went on to

explain that:

Privies [are] [p]ersons who are partakers or have an interest in

any action or thing, or any relation to another. . . . There are

several kinds of privies: namely, privies in blood, as the heir

is to the ancestor; privies in representation, as is the executor

or administrator to the deceased; privies in estate, as the

relation between the donor and donee, lessor and lessee;

privies in respect to contracts; and privies on account of estate

and contract together. . . . Privies have also been divided into

privies in fact and privies in law. . . . The latter are created by

the law casting land upon a person, as in escheat . . . .

Id. at 635, n.1 (internal citations omitted).

In Fultz v. Fultz, 180 Tenn. 327, 175 S.W.2d 315 (1943), our

Supreme Court noted that “[t]he term privity denotes mutual . . .

relationship to the same rights of property. The ground, therefore, upon

which persons standing in this relation to the litigating party are bound by

the proceedings to which he was a party is that they are identified with him

in interest, and whenever this identity is found to exist, all are alike

concluded.” Id. at 316 (citing 24 Am. & Eng. Ency. Law, p. 746). In

keeping with the definition of privies as those in mutual relationship to the

same rights of property, this Court, in Pers. Loan & Fin. Co. v. Kinnin, 56

Tenn. App. 481, 408 S.W.2d 662 (1966), perm. app. denied (Tenn. Nov.

17, 1966), relied upon the Black’s Law Dictionary to define privity as a

“derivative interest founded on or growing out of contract, connection or

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bond of union between the parties, mutuality of interest.” Kinnin, 408

S.W.2d at 664 (emphasis added).

Collier v. Greenbrier Developers, LLC, 358 S.W.3d 195, 199-200 (Tenn. Ct. App. 2009).

In this matter, Select Portfolio acquired the Loan from Bank of America in 2015,

sharing a privity of interest as the successor creditor; ARVM purchased the Property

from New York Mellon at the foreclosure sale, sharing a privity of interest in its

ownership of the Property; Main Street acted as ARVM’s agent in managing the

Property, sharing a contractual privity as to the Property; and Rubin Lublin, as the

substitute trustee, held legal title to the Property in trust for ARVM. See, e.g., Ralph v.

Scruggs Farm Supply LLC, 470 S.W.3d 48, 53-54 (determining within a res judicata

analysis, that a trust receiving transfer of real estate serving as security shared privity of

interest with the plaintiff owners of the property and that “[b]y the very nature of his

appointment as Substitute Trustee,” an individual was in privity with the trustee for

whom he substituted).

In asserting that the prior lawsuits were not adjudicated “on the merits,” Ms.

King’s argument may be interpreted as positing that the trial court erred in dismissing the

instant action because not all claims raised by her in the instant complaint were addressed

in prior actions. We emphasize that res judicata bars “all issues which were, or could

have been, litigated in the former suit.” Jackson, 387 S.W.3d at 491 (emphasis added).

Moreover, as Defendants note, Tennessee courts have adopted the “transactional

standard” in determining whether a cause of action is the same for purposes of res

judicata. See Parvin v. Newman, 518 S.W.3d 298, 307 (Tenn. Ct. App. 2016) (citing

Creech, 281 S.W.3d at 379-80). The transactional standard provides:

When a valid and final judgment rendered in an action extinguishes

the plaintiff’s claim . . . the claim extinguished includes all rights of the

plaintiff to remedies against the defendant with respect to all or any part of

the transaction, or series of connected transactions, out of which the action

arose.

Creech, 281 S.W.3d at 379-80 (quoting Restatement (Second) of Judgments § 24(1)). As

the Creech Court explained:

Like many of the other states adopting the transactional approach, we

observe that even where two claims arise out of the same transaction, the

second suit is not barred by res judicata unless the plaintiffs had the

opportunity in the first suit to fully and fairly litigate the particular issue

giving rise to the second suit. For example, when a plaintiff is initially

13

unaware of the existence of a cause of action due to the defendants’ own

concealment or misrepresentation, whether fraudulent or innocent, a second

cause of action is appropriate. Restatement (Second) of Judgments § 26

cmt. j. “The result is different, however, where the failure of the plaintiff to

include the entire claim in the original action was due to a mistake, not

caused by the defendant’s fraud or innocent misrepresentation.” Id.

Id. at 382 (footnote omitted).

The trial court in this case found that the three prior judgments all involved “the

same cause of action as [Ms. King’s] current action,” essentially finding that the claims in

the three prior actions all arose from the same transaction. We agree. In the magistrate’s

report and recommendation adopted by the district court in the Second Action, the

magistrate stated the following in pertinent part:

King’s allegations in the instant complaint are identical to the

allegations in the first lawsuit, and thus, her complaint should be dismissed

under the doctrine of res judicata.

***

Both of King’s lawsuits arise out [of] the foreclosure sale of the

same property. Apart from King’s fifth claim of intentional

misrepresentation of SCRA benefits alleged in the instant case, discussed

infra, all of the other claims relate to the same set of facts asserted in

King’s first lawsuit. King’s negligent-misrepresentation claim was also

asserted by King in the first lawsuit and dismissed by the court. Although

King did not assert an intentional-infliction-of-emotional-distress claim or

an ECOA [Equal Credit Opportunity Act] claim in the first lawsuit, these

claims arise from the same series of transactions, and thus, were previously

available to King. She should have litigated these causes of action in her

first lawsuit and may not litigate them here.

***

Because the loan did not originate before the period of Harold King’s

military service, the SCRA does not apply. Therefore, King’s intentional-

misrepresentation-of-SCRA-benefits claim based on representations made

by the Bank of New York Mellon and the Bank of America in their motion

to dismiss King’s first complaint fails to state a claim upon which relief can

be granted.

14

(Internal citations omitted.)

In the instant complaint, Ms. King has again made identical allegations arising

from the same transaction: the foreclosure sale or impending foreclosure sale of the

Property. She has refashioned the allegations to assert claims not stated as such in the

First Action or Second Action, namely (1) violation of the FDCPA, (2) “illegal flipping,”

(3) slander or “taint” on the Property’s title, (4) violations of statutes of limitation in sale

of the Property, and (5) wrongful foreclosure. All of these claims arise from the same

transaction as the claims in the First Action, and all could have been litigated in the First

Action. Ms. King posits that the trial court erred in the instant action by declining to

“consider any of [her] claims.” To the contrary, we determine that the trial court properly

declined to consider Ms. King’s claims upon determining that all arose from the same

transaction and either had been adjudicated or could have been litigated previously.

Ms. King has also raised two claims in the argument section of her brief on appeal

that she did not raise before the trial court: that Defendants were unjustly enriched by the

sale of the Property and that Mortgage Electronic Registration Systems, Inc. (“MERS”),

did not have the authority to transfer or assign the Deed of Trust to New York Mellon.

We find these claims to be waived on appeal in that they were not presented to or decided

by the trial court. See Dorrier v. Dark, 537 S.W.2d 888, 890 (Tenn. 1976) (“This is a

court of appeals and errors, and we are limited in authority to the adjudication of issues

that are presented and decided in the trial courts . . . .”)

Moreover, we determine that both the unjust enrichment argument and the

argument concerning the assignment of the Deed of Trust arose from the same

transaction involving the foreclosure sale or pending foreclosure sale and, as with the

other issues set forth above, could have been raised by Ms. King in the First Action. See

Bank of New York Mellon v. Berry, No. W2017-01213-COA-R3-CV, 2018 WL 930967,

at *4 (Tenn. Ct. App. Feb. 15, 2018), perm. app. denied (Tenn. June 8, 2018)

(determining in a wrongful detainer action that the defendant’s challenges to the plaintiff

bank’s ownership of her note and to the assignment of the related deed of trust were

barred by res judicata because “[b]ased on the transactional approach Tennessee follows,

[the defendant] was required to present all of her arguments regarding her challenge to

the foreclosure of the Property in her [prior] lawsuit”).3

3

As Defendants note, this Court had also concluded in an earlier appeal involving the same matter that

the defendant’s claim regarding the assignment of the deed of trust was in part barred because she did not

have standing to challenge an assignment to which she had not been a party. See Bank of New York

Mellon, 2018 WL 930967, at *4 (citing Berry v. Mort. Elec. Reg. Sys., No. W2014-02175-COA-R3-CV,

2015 WL 5121542, at *3 (Tenn. Ct. App. Aug. 31, 2015), mem. op.)). Having determined that Ms.

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Although this matter was adjudicated with finality on the merits in the First

Action, we conclude that the trial court was also correct to find that the district court’s

judgment in the Second Action operated as an adjudication on the merits. See Creech,

281 S.W.3d at 378 (“In Tennessee, any dismissal of a claim other than a dismissal for

lack of jurisdiction, for lack of venue, or for lack of an indispensable party ‘operates as an

adjudication upon the merits,’ unless the trial court specifies otherwise in its order for

dismissal.”) (quoting Tenn. R. Civ. P. 41.02(3)). As the Sixth Circuit noted in its March

2018 order, the district court dismissed the Second Action upon the magistrate’s

recommendation after the magistrate had screened Ms. King’s complaint sua sponte,

pursuant to 28 U.S.C. § 1915(e), for failure to state a claim for relief and had determined

that Ms. King’s claims “were barred by res judicata” based on the First Action.4

Although not prompted by a motion to dismiss, as with a Rule 12.02(6) motion, the

purpose of the district court magistrate’s screening was “to test the legal sufficiency of

the complaint.” Cf. Creech, 281 S.W.3d at 378. (“Unlike the dismissal of a complaint on

procedural or technical grounds, ‘[t]he sole purpose of a Tenn. R. Civ. P. 12.02(6) motion

to dismiss is to test the legal sufficiency of the complaint.’”) (quoting Dobbs v. Guenther,

846 S.W.2d 270, 273 (Tenn. Ct. App. 1992)).

The trial court also found that the Detainer Action operated as res judicata to the

instant action, and we agree. ARVM filed its complaint in the Detainer Action against

Ms. King to obtain possession of the Property, which it had purchased at the foreclosure

sale. The general sessions court granted possession of the Property to ARVM in its

judgment entered on April 18, 2018, and Ms. King failed to perfect an appeal from the

general sessions judgment to the circuit court. In dismissing the appeal, the circuit court

found that Ms. King’s defenses to the Detainer Action, “including without limitation, the

claims for alleged wrongful eviction lawsuit and subsequent dispossession efforts, are all

barred and precluded under the doctrine of res judicata . . . .”

As Defendants posit, a wrongful foreclosure action may be barred by res judicata

if it could have been litigated within a previously adjudicated detainer action. See Boyce

v. LPP Mortg. Ltd., 435 S.W.3d 758, 769 (Tenn. Ct. App. 2013) (determining that the

plaintiffs’ “allegations regarding the merits of title were barred by the doctrine of res

judicta” based upon a previously adjudicated detainer action awarding possession of the

King’s argument regarding the Deed of Trust is waived and, in any case, arose from the same foreclosure

transaction, we decline to address Defendants’ argument concerning standing.

4

In relevant part, 28 U.S.C. § 1915(e)(2)(B)(ii) provides in relation to federal proceedings in forma

pauperis, that “[n]otwithstanding any filing fee, or any portion thereof, that may have been paid, the court

shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a

claim on which relief may be granted[.]”

16

property at issue to the defendant); see also Foster v. Fed. Nat’l Mortg. Ass’n, No.

E2012-02346-COA-R3-CV, 2013 WL 3961193, at *1 (Tenn. Ct. App. July 31, 2013)

(“We affirm the judgment of the trial court because the plaintiffs could and should have

raised the issues pertaining to the alleged wrongful foreclosure in the earlier detainer

action.”).

We emphasize that we respect Ms. King’s decision to proceed pro se and have

measured her pleadings “by less stringent standards than those applied to pleadings

prepared by lawyers.” See Stewart, 368 S.W.3d at 462. However, “[t]he primary

purposes of the doctrine” of res judicata “to promote finality in litigation, prevent

inconsistent or contradictory judgments, conserve legal resources, and protect litigants

from the cost and vexation of multiple lawsuits” must prevail. See Creech, 281 S.W.3d

at 376. Upon a thorough review of the record and applicable authorities, we conclude

that the trial court did not err in dismissing the instant action upon finding that it was

barred by the principles of res judicata.

V. Remaining Issues

Ms. King has raised an issue regarding her due process rights, asserting that she

“was denied due process in that she did not have the opportunity to request production of

documents or submit interrogatories to build [her] case and find out who really holds the

note, the main reason for filing the Complaint in [the trial court].” Having determined

that the trial court properly found this action to be barred by res judicata, we further

determine that any issue concerning Ms. King’s due process rights in seeking discovery is

pretermitted as moot.

Ms. King has also raised an issue concerning the trial court’s termination of the

temporary restraining order it had entered against eviction proceedings pending a hearing

on Ms. King’s complaint. Defendants have expanded this issue to argue that the trial

court property denied Ms. King’s application for a temporary injunction pursuant to

Tennessee Rule of Civil Procedure 65.04, which provides in pertinent part:

(2) When Authorized. A temporary injunction may be granted during

the pendency of an action if it is clearly shown by verified

complaint, affidavit or other evidence that the movant’s rights are

being or will be violated by an adverse party and the movant will

suffer immediate and irreparable injury, loss or damage pending a

final judgment in the action, or that the acts or omissions of the

adverse party will tend to render such final judgment ineffectual.

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Again, having determined that the trial court properly found this action to be barred by

res judicata, we further determine that any issue regarding the trial court’s denial of Ms.

King’s request for an injunction prohibiting Ms. King’s eviction from the Property is

pretermitted as moot.

VI. Conclusion

For the foregoing reasons, we affirm the judgment of the trial court dismissing this

action. We remand this case for enforcement of the judgment and collection of costs

below. Costs on appeal are taxed to the appellant, Gwendolyn H. King.

s/ Thomas R. Frierson_____________

Thomas R. Frierson, II, JUDGE

18