Marra v. Bank of New York

310 S.W.3d 329, 2009 Tenn. App. LEXIS 909, 2009 WL 2382278
CourtCourt of Appeals of Tennessee
DecidedAugust 26, 2009
DocketW2008-00773-COA-R3-CV
StatusPublished
Cited by13 cases

This text of 310 S.W.3d 329 (Marra v. Bank of New York) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marra v. Bank of New York, 310 S.W.3d 329, 2009 Tenn. App. LEXIS 909, 2009 WL 2382278 (Tenn. Ct. App. 2009).

Opinions

OPINION

HOLLY M. KIRBY, J.,

delivered the opinion of the Court,

in which DAVID R. FARMER, J., and J. STEVEN STAFFORD, J., joined.

This appeal involves a court clerk’s fee for facilitating a foreclosure sale. The defendant bank held a foreclosure sale of the plaintiffs home without giving the plaintiff [331]*331proper notice. The plaintiff then filed this action and the sale was set aside. The trial court ordered that the property be re-auctioned and appointed the clerk and master of the chancery court as a special commissioner to facilitate the sale. At the second sale, the plaintiff purchased the property. The trial court ordered that the clerk be awarded 5% of the purchase price as his fee for services rendered in connection with the sale. The bank objected, arguing that the clerk’s fee was excessive. The trial court conducted a hearing and held that the fee to the clerk was reasonable. The bank appealed, naming the court clerk as an appellee in the notice of appeal, but failing to file a motion to add him as a party. The appeal was dismissed for lack of a final order. On remand, the court clerk filed a motion asking the trial court to confirm that he was immune from suit and that disbursement of his fee was proper. The clerk also sought Rule 11 sanctions in the form of appellate attorney’s fees against the bank’s attorney for naming him as a party in the notice of appeal without properly adding him. The bank filed two cross-motions for sanctions. The trial court held that the clerk was immune from suit and that disbursement of the fee to the clerk was proper. The clerk’s motion for Rule 11 sanctions was granted, and the bank’s two cross-motions for sanctions were denied. The bank and its attorney now appeal. We hold that the statement of the evidence filed by the appellants and not objected to by the appel-lees or ruled on by the trial court is deemed approved under T.R.A.P. 24. Addressing the merits, we reverse the trial court’s award of appellate attorney’s fees as sanctions under Rule 11. All other decisions by the trial court are affirmed.

Facts and ProceduRal Background

In May 2004, Plaintiff Rodney Marra (“Marra”) and his wife, Jentri Marra, obtained a $275,000 mortgage on property located at 50 Breezy Meadows Cove in Eads, Tennessee (“Breezy Meadows Property”). The mortgage was later assigned to Defendant/Appellee Bank of New York (“the Bank”). Marra’s name was not on the deed to the property.

On January 26, 2005, Marra’s wife died. After her death, Marra wished to become the sole owner of the Breezy Meadows Property. To this end, the Bank advised Marra to stop making the monthly mortgage payments, allow the property to go into foreclosure, and then purchase the property at the ensuing foreclosure sale for the amount of the balance of the mortgage plus the foreclosure expenses.1 Mar-ra agreed to this plan.

Due to an error by the Bank’s attorney, Philip M. Kleinsmith (“Kleinsmith”), Mar-ra was erroneously informed that the foreclosure sale would take place on April 4, 2006.2 Marra appeared at the courthouse on that date to purchase the property, but no sale took place. Two days later, on April 6, 2006, the foreclosure sale occurred without Marra present, and the Bank purchased the property for $285,974.66. A trustee’s deed to that effect was recorded. On June 23, 2006, the Bank filed a forcible entry and detainer (“FED”) action to evict Marra from the property.

On July 6, 2006, Marra filed this lawsuit against the Bank, as trustee, and Kleins-[332]*332mith, in his capacity as the Bank’s representative, to set aside the foreclosure of the trust deed on the Breezy Meadows Property and to obtain injunctive relief and other damages.3 The Bank conceded that the foreclosure sale was void for lack of proper notice to Marra, and on November 21, 2006, the Bank filed a “Declaration of Void Successor Trustee’s Sale” to that effect.4 The trial court ordered the property to be re-sold by the Clerk and Master of the Chancery Court, Vip D. Lewis (“Lewis”), as the Special Commissioner, and it ordered and directed the publication of the judicial foreclosure sale. See Tenn. Code Ann. § 35-5-101 (2007).

The court-ordered sale of the Breezy Meadows Property was held on March 8, 2007. Lewis, as the Special Commissioner, facilitated the sale. Marra was the successful bidder at the auction, purchasing the property for $289,000. Pursuant to an order entered by the trial court on March 20, 2007, the proceeds of the sale were to be distributed as follows: $510 in costs, $14,450 (5% of the sale price) as a fee for Special Commissioner Lewis, and the balance of $274,050 to the Bank.

On April 9, 2007, the Bank filed an objection to the Special Commissioner’s fee of $14,450, arguing that the fee “is under these circumstances totally unreasonable and unconstitutional.” The Bank attached to the objection the affidavit of Phillip Jones, a Tennessee attorney, who stated that he had acted as both attorney and trustee for foreclosures on many occasions and that his fee for such services was $550 to $750. On April, 13, 2007, the trial court conducted a hearing on the Bank’s objection. After the hearing, the trial court concluded that the Special Commissioner’s fee was proper. The record on appeal does not include a transcript of the hearing. On the same day, the trial court entered an order to disburse court sale funds, directing the disbursement of the proceeds of the sale, including the Special Commissioner’s fee.

On May 1, 2007, the Bank filed the first appeal in this matter. The Bank named Lewis as an appellee in the notice of appeal, in the cost bond, and in the designation of the record filed with the trial court. However, the Bank did not file a motion to add Lewis as an appellee. See Marra v. Bank of New York, No. W2007-01044-COA-R3-CV (Tenn.Ct.App. Sept. 18, 2007). On May 21, 2007, the Bank filed in the trial court a “Notice of No Objection by Appellee to Appellant’s Statement of the Evidence and Request that Chancellor Approve Same and Authenticate the Record on Appeal.” Marra and Lewis both filed briefs in the first appeal in which both requested attorney’s fees and damages resulting from the Bank’s frivolous appeal. On August 3, 2007, the Bank filed a motion with the appellate court requesting that Lewis be added as an appellee, that the appealed order be declared final, and that the request for attorney’s fees by Marra and Lewis be denied. On September 18, 2007, this Court dismissed the Bank’s first appeal for failure to appeal a final order, because the trial court had not addressed the issue of Marra’s damages. The decision did not address the request for attorney’s fees by Marra and Lewis, nor did it address the Bank’s motion to include Lewis as an appellee. The case was then remanded to the trial court.

After remand, on November 2, 2007, Lewis filed a “Motion to Confirm That Vip [333]*333D. Lewis is not a Party to the Action and to Disburse Fees.” He argued that, as Special Commissioner, he was acting in a quasi-judicial capacity and was, therefore, immune from suit and could not be added as a party. He asked the trial court to confirm that his fee could properly be distributed in accordance with the trial court’s April 13, 2007 order.

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Cite This Page — Counsel Stack

Bluebook (online)
310 S.W.3d 329, 2009 Tenn. App. LEXIS 909, 2009 WL 2382278, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marra-v-bank-of-new-york-tennctapp-2009.