by Sharon Rondeau
(Jan. 18, 2024) — On January 9, The Post & Email provided a long-awaited update on a case submitted pro se to the U.S. Supreme Court by a Middle Tennessee couple against whom a sizable judgment was obtained by the former Reliant Bank, now a part of United Community Banks, Inc. of South Carolina.
In November 2007, Dr. Byron Bush, a retired dentist, and his wife, Kelly Diane Bush, took out a loan from Reliant to develop a five-acre parcel of commercial property in a prime area. Having made regular payments as they sought developers for the project, in 2012 the Bushes defaulted after the collapse of the commercial real-estate market rendered them unable to continue paying.
According to the Note, Security Agreement and “Third Party Agreement” Dr. Bush signed with Reliant, if he were to default, complete restitution would be made solely through the bank’s repossession of the property. However, following the Bushes’ default, the bank changed its position, claiming the statement on the Security Agreement was a “mistake,” and sued the Bushes in state court for the alleged difference between the fair market value of the property at the time of foreclosure and the bank’s appraisal afterward, which Dr. Bush said was surprisingly low even taking into consideration the downturn in the market.
In 2013, the bank obtained the aforementioned judgment and began deducting payments from the Bushes’ bank account, Dr. Bush said, although the deductions ceased once they filed an appeal at the federal level in September 2021.
The amount, then more than $500,000, had by 2021 grown to more than $1,000,000 with fees and interest, Dr. Bush told us in an interview at the time.
Both the U.S. District Court for Middle Tennessee and Sixth Circuit Court of Appeals opined that the Bushes incorrectly sought relief in the federal courts for their claim of “fraud upon the court” when in fact, according to their respective opinions, the U.S. Supreme Court was the court of jurisdiction.
Throughout their now-10+-year ordeal in the courts, the fact that the bank affirmed it did not disclose its “mistake” to the Bushes when it was allegedly discovered nor thereafter was not probed, and the Bushes’ claim of “fraud upon the court” was “pretermitted,” or omitted, from each judge’s opinion.
Last August, the Bushes appealed to the high court and were encouraged after receiving an administrative request to submit their Petition for a Writ of Certiorari with a format change. Though proving very costly, the Bushes complied and waited for further word until December 12, when they were informed the court declined to take their case.
Just after Christmas, the Bushes filed a Petition to Rehear with the court. ”Hereby, we PETITION this U.S. SUPREME COURT to reconsider their DENIAL of our WRIT OF CERTIORARI,” the Bushes wrote in their opening statement. ”Per Rule 44 (2) of the SCOTUS rules, ‘…grounds shall be limited to intervening circumstances of a substantial or controlling effect…’
“…Nothing could be more ‘substantial [or] controlling‘ then fraud, that is extrinsic, beyond the control of any litigants. But even more devious, is fraud that is a ‘corruption of the judicial machinery itself‘ in which officers-of-the-court commit a fraud-upon-the-court.”
On page 5 of 11 of their brief, the Bushes invoked Federal Rules of Civil Procedure Rule 60 (d)(3), “Fraud upon the Court,” writing:
When fraud-upon-the-court occurs, it is not the “court” that committed the fraud, but rather an officer-of-the-court… Who in some way, intentionally deceived or “corrupted the judicial machinery itself.
This is vastly different from a “Harmless Error.
Instead, Federal RULE 60 (d)(3) states,
”OTHER POWERS TO GRANT RELIEF. This rule does not limit a court’s power to: (3) set aside a judgment for fraud on the court.”…The official duty of any officer-of-the-court, is or should be, to assure that Due Process, or “fairness”… in applying the Rule of Law… is upheld. Judges are human, that is, they can make a “mistake” or inadvertently distort or leave-out facts. But when the relevant and material FACTS of one-party ONLY are consistently and repeatedly omitted, or “pretermitted”, a pattern becomes crystal clear of intentional dereliction of official duty…
The rule is stated as:
Rule 60. Relief from a Judgment or Order
…(d) Other Powers to Grant Relief. This rule does not limit a court’s power to:
…(3) set aside a judgment for fraud on the court.
On Saturday, the Bushes received a letter from the court’s Office of the Clerk dated January 11, 2024 requesting corrections.
“You must certify that the petition for rehearing is presented in good faith and not for delay,” the list of requirements began.
“Please be advised the petition for rehearing may not be combined with any other filings to this Court and may be filed separately according to the Rules of this Court,” the letter continued. ”Please revise the cover of the booklets to indicate the filing as to a petition for rehearing only pursuant to Rule 44.”
The clerk also informed the Bushes that “the Rules of this Court make no provision for the filing of a motion for judicial notice and/or a Rule 60(d)(3) Motion for ‘fraud upon court.'”
Citing Rule 44.6, the clerk wrote that the required changes must be received by the court “within 15 days of the date of this letter” or “the petition will not be filed.”
The corrections were made Monday, Dr. Bush told The Post & Email, and dispatched to the court at a four-figure cost.