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’Fraud on the court’ seen as TN judges refuse to consider key facts in Bush case

You can hear for yourself over the space of 35 minutes, the grievances against judicial partiality of Dr. Byron Bush, top row center. A link is at bottom.

Evidently in Tennessee, a bank can allege and admit to a ‘mistake… the bank’s mistake‘ and yet hold the customer accountable, knowing it will cost the customer a million-dollar loss while the bank profits.  This has now been approved by the TN Supreme Court who has just declined to hear a case where this alleged-admission of a bank ‘mistake‘ by their officers with knowledge of that ‘mistake‘ for four years while never informing the customer, along with evidence that the bank altered their loan documents to prevent the customer from renewing a Security Agreement to ‘satisfy the Borrower’s debt‘; yet none of these material facts contained within the court records have ever been acknowledged or addressed within court Opinions, as though they were never heard.  Judges, officers-of-the-court have conveniently left-out, ‘pretermitted‘ this evidence, now with the blessing of Tennessee’s highest court who has refused to render any relief to the victims, ‘regardless of the type of fraud alleged.‘  To them, it doesn’t ‘matter.’  Why?  At the very least it reflects an effort to protect their judicial peers who have deceived the Honorable Court and have thus committed fraud upon the court.  Anyone else would be serving time.

— Dr. Byron Bush, defendant/appellant

On June 11, The Post & Email reported on an eight-year court case between Dr. Byron Bush, a Nashville-area dentist and his wife, Kelly, and Reliant Bank, which had lent money to Dr. Bush on a commercial property prior to the economic downturn of 2008.

By Sharon Rondeau / The Post and Email

As the recession deepened and financing to develop the property became virtually impossible to obtain, Dr. Bush decided it was in the best interest of his family and business to cease making payments to Reliant and allow it to foreclose on the property. A foreclosure sale at which the bank was the only potential buyer took place in December 2012.

An appraiser Reliant had used approximately two years earlier completed an appraisal of the property for the Bushes within 30 days of the foreclosure for a Fair Market Value of $1,885,000-$2,225,000.  However, 30 days after the sale, Reliant commissioned a new appraisal by someone much less experienced, Dr. Bush said, who also had a relative working at the bank.  That assessment produced a figure significantly lower ($1,050,000) than the appraisal Dr. Bush commissioned and initiated Reliant’s lawsuit against the Bushes, filed in 2013, for a deficiency judgment, which is now approximately $1,000,000, interest and attorneys’ fees.

Tennessee law was skirted, Dr. Bush told The Post & Email, when the courts allowed Reliant to pursue the deficiency against him, not only stemming from the appraisal issue, but also in light of the fact that the Security Agreement which was prepared and directed by the bank for him to sign at the origination of the loan declared him to have no obligation other than the property itself should foreclosure occur.

Despite an admission from the bank’s senior vice president, Rick Belote, under oath that the bank had made “a mistake” in having Dr. Bush sign the Security Agreement, no judge presiding over the matter has reflected it in his opinion, Dr. Bush noted.  The “fact” of the bank’s “alleged-mistake” should have negated the bank’s entire premise for suing them, Dr. Bush said.  “The law does not support holding a victim responsible for the mistake of another party, and the judges’ ‘pretermitting’ (leaving out) of the facts of the case indicates corruption and ‘fraud upon the court.’”

Dr. Byron Bush and his wife, Kelly, have been unable to get dispositive evidence (meaning, evidence that really matters) to be considered by the Tennessee court system as they defend against a lawsuit by a bank. (Photo Kelly Bush)

Moreover, Dr. Bush contends that the bank’s claim of a “mistake” is “false.”

Upon the first renewal of the loan in January 2010, Dr. Bush recalled, Reliant’s loan officer instructed him not to sign the Security Agreement for the second time. “I signed again as a borrower under the NOTE, but the loan officer stopped me from signing the bank-prepared ‘Security Agreement,’” Dr. Bush said, as he was told the original agreement was “still in effect.”

“The definition of ‘fraud’ talks about knowing there to be a mistake but refusing to disclose it,” Dr. Bush said.  “Rick Belote testified that the bank’s own contract, which they prepared and on which they typed my name to be signed and directed me to sign, and they dispensed the funds after I signed it and stamped it after I signed it – was the bank’s mistake, not the Bushes’ mistake.  He testified that after discovering the ‘mistake’ in 2010, he didn’t tell us and wouldn’t have told us even if we had asked.  All of that testimony was in front of Judge Martin in the Williamson County Chancery Court, and even Martin acknowledged that it’s clear the bank takes the position that it was a mistake.

“Here they have all that testimony, and in 30 pages of Judge Martin’s opinion, he has heard the bank say there was a mistake on their part. They were the trusted authority; they knew about the mistake, and yet none of what I’ve just told you about was in his opinion,” Dr. Bush said, then continued:

Since 2014, we have filed at least a dozen actions in which we have listed every single time that the bank said it made a mistake.  We pointed out that they even altered documents and cited the case authority; many of those are listed in the recent application to the Tennessee Supreme Court.  The closest they came was the first appeal in 2015 in which the court, in receiving the lower-court judge’s 30-page opinion, said it was a mistake for my “signature” to be on the Security Agreement, but they ignored the bank’s placement of my name there and admission that it was the bank’s mistake.  So after a dozen or more attempts, that’s the only acknowledgement they’ve ever given us.

If you believe us, then the loan contract should be “enforced as written” per Tennessee law [T.C.A. 47-50-112], but if you believe the bank that it was their mistake, then the mistake is their problem.  In almost eight years of litigation, the judges have repeatedly left these material facts, facts-that-matter, out of their opinions.

The definition of “fraud upon the court” is when a sworn officer of the court deceives the court. The court is supposed to be honorable. You and I could commit perjury but not fraud upon the court.  That’s why we call the judges, “Your Honor.” 

The bank was pursuing a “deficiency judgment.  Even without a fully recourse loan, the bank should have been required to go with the appraisal done within 30 days of purchase; if they had, the bank would have owed us money.  Instead, they bought it with an appraisal of $1,050,000, down from $2,475,000 two-years earlier; a difference of $1,425,000 from their earlier appraisal.  Tennessee statute does allow for deficiency judgments, but if so, the bank is required to purchase it within 14% of the Fair Market Value.   They did what is called a sub-fair-market appraisal and the courts looked the other way.  With attorney fees, they now want over $1,000,000 from us, for their mistake.

I’ve put up a good fight against a firm that was involved in Watergate:  Neal & Harwell.  Jim Neal and Aubrey Harwell are the founders of the firm; Jim Neal was involved in Watergate and passed away; Aubrey Harwell is the remaining partner.  They have a number of employees; they were involved in the Exxon-Valdez; they’ve got some deep pockets.  Judge Clement, who heard our appeal twice, is extremely good friends with Aubrey Harwell and sits on the Board of the Nashville School of Law.  So much for impartial judges.

In late April the Bushes appealed to the Tennessee Supreme Court for the fourth time to request an independent action to investigate the lower courts’ omission of material facts.  On Tuesday morning, Dr. Bush informed The Post & Email that again, the state’s highest court declined to hear the case.2021-06-18-10-58Download

Having launched an unsuccessful bid for U.S. Senate in 2019 on a platform of exposing and ameliorating judicial corruption in Tennessee, Dr. Bush said he remains undeterred from that commitment, having heard from numerous other Tennesseans who claimed similar judicial victimization, several from the same judges involved with the Bushes.

[Editor’s Note:  The Post & Email first reported on Tennessee judicial corruption more than a decade ago, when proof was presented from local citizens and admitted to by court clerks and the media that Tennessee grand-jury foremen are selected from outside of the jury pool by the criminal court judge and serve for as long as the judge wishes, contrary to Tennessee law, which mandates that all jury members be selected randomly and meet the qualifications of a juror. 

A Tennessee case from 1883 demonstrates that at the time, grand-jury foremen were chosen from “the venire,” or pool of screened jury members.  In 1919, the Tennessee legislature passed a law allowing judges to exercise “discretion” in choosing grand-jury foremen “from the community at large,” making way for the system currently in place today, which has defied the legislature’s 1979 repeal of the law allowing the practice.

Further, in 2012 we discovered that Tennessee’s county criminal court system was ordered abolished by the legislature in 1984 yet remains intact to this day.]

While Reliant’s case against the Bushes and the Bushes’ responsive case against Reliant are civil matters, Dr. Bush believes that “fighting for judicial reform” is a key issue for all Americans.

Please read the whole story

Watch the hearing here:

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