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Posted by: Barry Kolar on Jun 30, 2014

Court: TN Court of Appeals

Attorneys 1:

William A. Harris, III, Chattanooga, Tennessee, for the appellants, Oscar Brock and Frank E. Cowden, III.

Attorneys 2:

Wade K. Cannon and Justin B. Faith, Chattanooga, Tennessee, for the appellee, Capital Bank.

Judge(s): SUSANO

Capital Bank filed a complaint seeking a deficiency judgment against Oscar Brock and Frank E. Cowden, III (“Defendants”) after they defaulted on a loan and following the sale at foreclosure of the property securing the debt. After settlement discussions were unsuccessful, Capital Bank moved for summary judgment. It asserted that no genuine issue of material fact exists and that it is entitled to a judgment as a matter of law. Defendants contested the motion but only as to the amount of the deficiency and the issue of whether Capital Bank is entitled to an award of attorney’s fees. As a defense to the deficiency claim, Defendants stated that the property was sold at foreclosure for an amount “materially less” than its fair market value and that Capital Bank’s knowledge of the alleged less-than-market- value sales price amounted to fraud, collusion or misconduct. The trial court granted Capital Bank’s motion. It was awarded a judgment of $168,798.98 which amount includes $70,628.85 in attorney’s fees.1 Defendants appeal. We affirm.