SCOTUS Denies Rehearing Request on Bank “Mistake,” Alleged “Fraud Upon the Court”

by Sharon Rondeau

(Mar. 10, 2024) — According to a letter dated February 26, 2024 from Scott S. Harris, Clerk of the Court for the U.S. Supreme Court, a Middle Tennessee couple ensnared in a bank’s demand for restitution for a 2012 default on a commercial property loan will not get their “day in court.”

The letter, received March 1 by retired dentist Dr. Byron Bush and his wife, Kelly Diane Bush, simply states:

The Court today entered the following order in the above-entitled case:

The petition for rehearing is denied.

Lower federal courts to which the Bushes appealed after taking their case through the Tennessee courts issued opinions stating that the proper venue for an appeal in their circumstance was the U.S. Supreme Court, where the Bushes subsequently filed a petition for Writ of Certiorari last August in their quest for justice.

The Bushes have represented themselves in virtually all of the litigation in their years-long dispute with the former Reliant Bank of Brentwood, TN, now a part of United Community Bank, Inc. While still under the Reliant franchise, the bank changed its position expressed in the “Third Party Agreement” Dr. Bush signed when he took the loan affirming that if the borrower should default, turning over the property to the bank would be sufficient payment of the debt.

Executed November 30, 2007, the Bushes afterward made timely monthly payments on the loan while taking their vision to transform it into a shopping center and business hub near a busy Tennessee airport and major state road to several interested developers. However, as a result of the severe economic downturn of 2008 resulting in the abandoning of their plan, by 2012 the Bushes were unable to remit further payments.

In December that year, Reliant foreclosed on the property. It then sought a judgment against the Bushes for approximately $500,000 representing the difference between the appraised value of the property and what was owed on the loan.

Although then-Reliant Vice President Rick Belote testified during the trial that the bank made “a mistake” when it had Dr. Bush sign the “Third Party Agreement,” the Tennessee trial court ruled in favor of the bank, imposing the judgment which has more than doubled due to fines and interest, Dr. Bush told The Post & Email in June 2021.

Upon questioning on the stand, Belote had responded, “Not that I’m aware of” in regard to whether the bank had “done anything to acknowledge this mistake” but that it remedied its error in “subsequent renewals,” albeit without bringing it to the attention of the Bushes.

“That fact has been omitted from the opinions of three Tennessee judges and defendants in the case, all of whom ruled against the Bushes,” The Post & Email reported on October 5, 2021, by “pretermitting.”

The judges are James G. Martin III, Steven Stafford and Frank G. Clement, who the Bushes named as defendants along with Reliant and two of its officers.

“The law does not support holding a victim responsible for the mistake of another party,” Dr. Bush maintains, “and the judges’ ‘pretermitting’ (leaving out) of the facts of the case indicates corruption and ‘fraud upon the court.’”

After the Tennessee Supreme Court refused to hear their appeal, Dr. Bush remarked, “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.”

The Bushes’ petition to rehear submitted to a Tennessee appellate court received the response, “Pretermitting issues is a long-standing practice in Tennessee Court.”

To date, Dr. Bush has stressed, including at the federal level, no jurist has recognized that certain “issues not addressed have been pretermitted” at each step of the case, referencing the bank’s admission of its “mistake” and lack of disclosure of same to the borrowers.

After revising their August 2023 filing at the high court’s request at great personal expense, in mid-December the Bushes received notification that their petition for a Writ of Certiorari would not be granted a hearing.

On December 26, the Bushes filed a petition to rehear, writing, in part:

Hereby, we PETITION this U.S. SUPREME COURT to reconsider their DENIAL of our WRIT OF CERTIORARI. Per Rule 44 (2) of the SCOTUS rules, “… grounds shall be limited to intervening circumstances of a substantial or controlling effect…”

Therefore, we submit two MOTIONS in support of this PETITION FOR REHEARING.

Nothing could be more “substantial [or] controlling” than 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.

This has worked its way through the courts of Tennessee since 2012, the Nashville District Court, the 6th Circuit Court of Appeals, and is now in danger of infiltrating SCOTUS.

In response to the court’s February 26 letter, the Bushes prepared an “OBJECTION TO SCOTUS DENIAL TO HEAR OR REHEAR PETITIONERS’ WRIT OF CERTIORARI” to be mailed Monday in which they contend:

If this U.S. SUPREME COURT does not uphold the RULES of Due Process, and ensure that the lower Federal and State Courts do the same, then Due Process is dead in America, the CONSTITUTION is false, and justice is perverted.[1] 

Petitioners hereby OBJECT to this U.S. SUPREME COURT’S DENIAL to hear this matter.  We do so, NOT based on any RULES of this Court, or of any Federal Rules of Civil Procedure, or Rules of Evidence.  We’ve already followed those RULES.  Those “RULES” have NOT ONCE been used or enforced by any Court of Tennessee or of this Federal Court authority, now including SCOTUS.  No semblance of “fairness… [or] Due Process…” in applying the Rule of Law has been upheld.

In closing, the Bushes wrote:

…we again beseech each JUSTICE of this U.S. SUPREME COURT… PLEASE reconsider your DENIAL… FUFILL your CONSTITUTIONAL obligation… and insist that the “FACTS” be openly… and “legally considered“.  As citizens, we DEMAND OUR CONSTITUTIONAL GOD-GIVEN RIGHTS.

In short, Due Process has NOT been served… extrinsic fraud runs rampant… “We the people…” deserve better. 

[The Post & Email has redacted the Bushes’ personal information from the last page of the filing.]