IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs September 6, 2012

JOAN T. WILLIAMS ET AL. v. BANK OF AMERICA ET AL.

Appeal from the Circuit Court for Williamson County

No. 09619 James G. Martin, III, Judge.

No. M2012-00105-COA-R3-CV - Filed October 22, 2012

Debtors on a promissory note and deed of trust who have not made a mortgage paymentsince

October 2008 filed this action in October 2009 in an attempt to stay foreclosure proceedings

and alternatively for damages based on unjust enrichment. The trial court summarily

dismissed the claims and the plaintiffs did not appeal that order. Plaintiffs then filed a motion

for reconsideration of the summary dismissal and forstay of foreclosure pending the outcome

of the motion for reconsideration; the motion was denied. The plaintiffs filed a timely appeal

from the order denying the motion for reconsideration and stay. Finding no error, we affirm.

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

FRANK G. CLEMENT, JR., J., delivered the opinion of the Court, in which ANDY D. BENNETT

and RICHARD H. DINKINS, JJ., joined.

John Frank Higgins, Nashville, Tennessee, for the appellant, Joan T. Williams and Ronald

L. Williams.

Lauren Paxton Roberts and Christopher Brett Jaeger, Nashville, Tennessee, for the appellee,

Bank of America, Wells Fargo Bank, Bank of York Mellon f/k/a The Bank of New York as

Successor to JP Morgan Chase Bank, N.A., as Trustee for Sam II Trust, 2005-AR8 Mortgage

Pass-Through Certificates, Series 2005-AR8, Countrywide Home Loans f/k/a America’s

Wholesale Lender, and MERS.
MEMORANDUM OPINION

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Joan T. Williams and Ronald L. Williams (“Plaintiffs”) commenced this action on

October 26, 2009, stating claims for wrongful foreclosure and unjust enrichment against

numerous defendants including Bank of America, Wells Fargo Bank, Bank of York Mellon

f/k/a The Bank of New York as Successor to JP Morgan Chase Bank, N.A., as Trustee for

Sam II Trust, 2005-AR8 Mortgage Pass-Through Certificates, Series 2005-AR8,

Countrywide Home Loans f/k/a America’s Wholesale Lender, and MERS (“Defendants”).

Defendants timely filed answers denying all of the claims.

On July 15, 2011, Defendants filed motions for summary judgment, which were

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initially set to be heard on September 12, 2011. Pursuant to an amended notice of hearing,

the motion was set to be heard on August 29, 2011. Plaintiffs were provided notice of the

rescheduled hearing more than 30 days prior to the hearing; however, Plaintiffs did not file

a response to the motion for summary judgment.

The motion came on for hearing on August 29, 2011, but Plaintiffs did not appear nor

did anyone appear on their behalf. As a consequence, the trial court granted the motion by

order entered on September 12, 2011.

Plaintiffs did not appeal the award of summary judgment; instead, Plaintiffs filed a

motion titled “Motion to Set Aside and/or Give Additional Time for Plaintffs to Respond to

Defendant’s Motion for Summary Judgment.” The motion was denied upon findings by the

trial court, inter alia, that Plaintiffs had not identified any evidence supporting the assertion

that they had a meritorious defense concerning their alleged obligations under the note and

deed of trust.

Tennessee Court of Appeals Rule 10 states: 1

This Court, with the concurrence of all judges participating in the case, may affirm, reverse

or modify the actions of the trial court by memorandum opinion when a formal opinion

would have no precedential value. When a case is decided by memorandum opinion it shall

be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited

or relied on for any reason in any unrelated case.

A separate motion for summary judgment was filed by another defendant, Real Time Productions,

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Inc., which was not ruled upon in the order at issue on appeal. Nevertheless, Plaintiffs insist the order

appealed from constitutes a final appealable order even though its language is inartful for purposes of

Tennessee Rule of Civil Procedure 54.02. Defendants believe it is not a final appealable order but Defendants

fully briefed the issues nonetheless. In that the parties have fully briefed the issues and Plaintiffs insist the

order appealed from is a final appealable judgment, we hold that it is a final appealable judgment. 

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Thereafter, on November 2, 2011, in a final attempt to prevent foreclosure, Plaintiffs

filed an “Emergency Motion for Reconsideration and Stay of Foreclosure Pending Outcome

of Plaintiffs’ Motion for Reconsideration.” The motion was denied by the trial court.

Plaintiffs then timely filed an appeal of the denial of their motion for stay of the foreclosure.

ANALYSIS

Plaintiffs did not appeal the September 12, 2011 order granting summary judgment;

thus, we are not reviewing the propriety of the trial court’s decision to summarily dismiss

Plaintiffs’ claims. Instead, the issue on appeal is whether the trial court abused its discretion

in denying the November 2, 2011 motion for reconsideration and stay of the foreclosure. This

court reviews such discretionary decisions under an abuse of discretion standard.

Under the abuse of discretion standard, a trial court’s ruling “will be upheld

so long as reasonable minds can disagree as to the propriety of the decision

made.” A trial court abuses its discretion only when it “applies an incorrect

legal standard, or reaches a decision which is against logic or reasoning or that

causes an injustice to the party complaining.” The abuse of discretion standard

does not permit the appellate court to substitute its judgment for that of the

trial court.

Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (internal citations omitted).

In this appeal, Plaintiffs contend the trial court abused its discretion by denying the

motion. Defendants contend the trial court did not abuse its discretion by denying the motion

for reconsideration and stay because the trial court found that Plaintiffs were in default on

the note, Plaintiffs owed nearly $1.9 million on the note, and the court had properly

dismissed Plaintiffs’ wrongful foreclosure and unjust enrichment claims in August 2011.

Defendants further assert in their brief:

It is unclear from [Plaintiffs’] brief whether Plaintiffs raise any challenge to

the trial court’s denial of their Emergency Motion that is not simply a thinlyveiled challenge to the trial court’s earlier (unappealed) Orders. To the extent

they do, any such challenges must fail. First, Plaintiffs state that “the trial court

applied the incorrect legal standard by attempting to impose an ‘affidavit’

requirement on Plaintiffs.” Setting aside the fact that it is unclear what legal

standards apply to Plaintiffs’ confusing Emergency Motion, Plaintiffs do not

and cannot identify anywhere in the trial court’s November 3, 2011 Order

where it imposes an “affidavit requirement.” The Order references affidavits

only in reviewing the basis of its summary judgment decision. Nowhere does

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the trial court say Plaintiffs were required to submit an affidavit to support

their Emergency Motion. Second, Plaintiffs state that “the trial court’s denial

of Plaintiffs’ Emergency Motion is against logical reasoning.”

We have examined the record and have determined the trial court addressed the

pertinent issues and thoroughly explained the reasons for its decision to deny Plaintiffs’ final

motion and the motion for reconsideration and to stay foreclosure pending the outcome of

the motion for reconsideration. Thus, we quote the pertinent provisions of the trial court’s

November 3, 2011 order instead of paraphrasing the court’s findings and conclusions.

Order

This matter is before the Court on Plaintiffs’ Emergency Motion for

Reconsideration and Stay of Foreclosure Pending Outcome of Plaintiffs’

Motion for Reconsideration filed November 2, 2011. Plaintiffs cite no Rule of

Civil Procedure in Support of their motion. The Court is unfamiliar with a

“Motion for Reconsideration.” The Court will treat Plaintiffs motion as one to

Alter or Amend the Court’s Order of September 15, 2011, pursuant to Rule 59

of the Tennessee Rules of Civil Procedure. A review of the file reflects that

this case was initiated by Plaintiffs on October 26, 2009, through the filing of

a “verified petition for injunction.” All of the Defendants other than Real Time

Resolutions, Inc. answered the allegations of the complaint on December 8,

2009, and Real Time Resolutions, Inc. answered the allegations of the

complaint on March 3, 2010. The case then remained dormant until the

Defendants, other than Real Time Resolutions, Inc., filed their Motion for

Summary Judgment on July 15, 2011. In support of their motion, said

Defendants filed the declaration of Christen Ransom, which [is] attached as

Exhibit 1 as a color copy of an adjustable rate note which purports to bear the

signatures of Ronald L. Williams and Joan T. Williams; and which attached

thereto as Exhibit 2, a color copy of a Deed of Trust securing the note, which

purports to bear the signatures of Ronald L. Williams and Joan T. Williams;

and which attached thereto as Exhibit 3, a copy of a letter to Ronald L. and

Joan T. Williams at the address 1008 Chapel Lake Circle, Franklin, TN 37069,

with a loan history attached to it. Further, in support of their motion, said

Defendants filed a statement of undisputed material facts. The Motion for

Summary Judgment was originally noticed to be heard on September 12, 2011

at 9:00 a.m. On July 27, 2011, a notice was filed resetting the motion for

hearing on August 29, 2011 at 9:00 a.m. The matter was then heard on August

29, 2011, and the Court entered an Order on September 12, 2011, granting all

Defendants, other than Real Time Resolutions, Inc., summary judgment. The

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Court’s order reflects that it is a final order. Rather than appeal from the

Court’s order, on September 6, 2011, the Plaintiffs filed a Motion to Set Aside

and/or Give Additional Time for Plaintiff to respond to Defendant’s Motion

for Summary Judgment. On September 15, 2011, the Court entered a

Memorandum and Order requiring the Defendants to respond to Plaintiffs’

Motion. On September 21, 2011, said Defendants filed their opposition to

Plaintiffs’ Motion to Set Aside and the Court denied Plaintiffs’ Motion to Set

Aside and/or Give Additional Time by Order entered October 18, 2011. In

addition to Plaintiffs’ Motion for Reconsideration, the Court has received an

email from Plaintiffs’ counsel, a copy of which is attached hereto. In their

Emergency Motion for Reconsideration, Plaintiffs argue that the trial court’s

decision on whether to grant or deny their motion is judged by the standard

applicable to default judgments. The Court respectfully disagrees. This matter

was not before the Court on a Motion for Judgment by Default. This matter

was before the Court on a Motion for Summary Judgment. The Motion for

Summary Judgment was properly supported with an affidavit and a statement

of undisputed material facts. At the time the Motion for Summary Judgment

was heard, and even today, Plaintiffs have submitted no affidavit refuting the

facts and matters contained in the affidavit of Christen Ransom, nor have they

responded to the statement of undisputed material facts. Plaintiffs do submit

the affidavit of Joan Williams, who states that she believes that she has a

meritorious defense, but does not articulate that defense. Most importantly,

nowhere in her affidavit does Ms. Williams refute Defendants allegation that

no payment has been made on the debt in question since October 2008. Ms.

Williams further states that she would like the opportunity to be heard and to

have her attorney respond to the Motion for Summary Judgment. Plaintiffs

were afforded the opportunity to be heard by filing a timely response to the

Motion for Summary Judgment. Plaintiffs failed to do so. It is undisputed in

this record that the Plaintiffs have continued to occupy the premises known as

1008 Chapel Lake Circle, Franklin, TN 37069 for three years as of October

2011, without making any payments on the indebtedness incurred by them on

November 23, 2005, in the principal amount of $1,432,080, the balance of

which has increased to $1,592,101.95, as of August 31, 2011, not including

$63,163.36 in unpaid escrow for taxes and insurance, which sum had been

paid by Bank of America, N.A., further the principal of the debt does not

include $213,536.60 in accrued interest and $3,197.69 in late charges. Not

only do Plaintiffs fail to allege any ground which would warrant the Court’s

altering or amending its Order of September 12, 2011, the Court finds that

were it to grant Plaintiffs’ Motion, the Court would be aiding and abetting the

Plaintiffs in their efforts to forestall the inevitable and their desire to continue

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to occupy premises to which they are no longer entitled by virtue of their

failure to make payments on a note which they executed on November 23,

2005. Accordingly, [the motion is denied].

Based upon the foregoing, we find no abuse of discretion in the trial court’s decision

to deny the motion for reconsideration and stay; accordingly, we affirm the trial court.

IN CONCLUSION

The judgment of the trial court is affirmed, and this matter is remanded with costs of

appeal assessed against the appellants, Joan T. Williams and Ronald L. Williams.

______________________________

FRANK G. CLEMENT, JR., JUDGE

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