JCR, LLC Et Al. v. Vicki Hance Et Al. - Dissent

Because “[t]here is absolutely no doubt that wrongful foreclosure can be raised as
an affirmative defense to an unlawful detainer action brought by the purchaser of property
in foreclosure[,]” Davis v. Williams, No. E2010-01139-COA-R3-CV, 2011 WL 335069, at
*3 (Tenn. Ct. App. Jan. 31, 2011), no appl. perm. appeal filed (citations omitted), I
respectfully dissent. The reasoning behind this defense is evident—to protect those who
are wrongfully foreclosed upon from losing their home. The Hances availed themselves
of the defense of wrongful foreclosure, just as Tennessee law provides. The Hances’
wrongful foreclosure lawsuit against Nationstar is still pending.1 While I cannot know the
future outcome of the wrongful foreclosure lawsuit, neither can the majority. Under the
majority’s holding, the decision in the wrongful foreclosure suit is immaterial. The Hances
could prevail in their wrongful foreclosure lawsuit against Nationstar and still be ejected
from their home by JCR leaving them with the hollow “victory” of attempting to collect
on a money judgment against Nationstar. Their home would be lost to them despite their
win. Such a result would be deeply unjust and contrary to longstanding Tennessee
precedent that wrongful foreclosure is a defense to a detainer action.