Nelson Bowers II files lawsuit against Toby McKenzie

Nelson Bowers II files lawsuit against Toby McKenzie

December 17th, 2011 by Todd South in News

Document: McKenzie & Bowers Lawsuit

A local auto dealer is suing his former business partner Toby McKenzie, alleging McKenzie filed a "meritless" lawsuit against him last year.

Nelson Bowers II filed a lawsuit Thursday in U.S. Bankruptcy Court and in Hamilton and Bradley County civil courts claiming "malicious prosecution" and "abuse of process" against McKenzie and the lawyer and firm who represented McKenzie in the 2010 lawsuit -- Richard Banks & Associates.

Banks did not return a phone call or an email seeking comment late Friday.

Bowers said in a phone interview Friday that he is suing to recoup expenses and "clear his name."

"The way that [2010 lawsuit] was written it was like I was a crook," Bowers said. "It kind of surprised me."

Bowers' lawsuit claims that Banks and McKenzie had "no reasonable expectation of a fair chance of success" and should have known that the lawsuit was "meritless."

Banks and McKenzie sued Bowers and his lawyer in August 2010 to "recover, seize and secure" property involved in McKenzie's bankruptcy filing in December 2008.

McKenzie made his fortune in the payday loan business. He eventually sold the business and invested in other business and real estate.

His 2008 bankruptcy has led to the liquidation of his assets to pay nearly $200 million owed to 40 creditors nationwide.

McKenzie claimed that Bowers took advantage of him in December 2008. McKenzie said that while he suffered from a mentally debilitating illness, Bowers persuaded him to sign away 60 acres of valuable property and half ownership in Tennessee Interstate Properties.

Ten acres of the land at Interstate 75 exit 20 became the site of Toyota of Cleveland. In the 2010 lawsuit, McKenzie claimed Bowers never paid him the $1 million for that sale.

Separate lawsuits filed by McKenzie in Bradley County Chancery Court and Bankruptcy Court sought $75 million and $45 million, respectively.

A Bradley County Chancellor dismissed portions of the lawsuit in December 2010. When Banks and Mc-Kenzie continued to pursue the suit, a February 2011 Chancery Court hearing clarified that the entire lawsuit and all defendants were dismissed.

Bowers said Friday that he and McKenzie were partners in the land development but McKenzie contributed no money to develop the property. He said his investments saved the land from being sold off in McKenzie's bankruptcy.

Chattanooga attorney Robin Flores practices criminal and civil law.

Flores said in a Friday phone interview that to win a malicious prosecution claim, the attorneys would have to have won the original lawsuit against them, prove that the suit had no probable cause and that the suit was malicious.

Flores said that often those suits can be expensive for law firms because insurance companies often won't protect against malicious prosecution claims.

Any fees or damages awarded likely will come directly from the lawyer and his client, he said.

McKenzie's bankruptcy still is in process, according to court records.

One of an attorney's responsibilities is to ensure that his client's claim has merit by investigating it before filing a lawsuit, Flores said.

Bowers said the 2010 lawsuit was "frivolous," and that Banks' firm "did no homework whatsoever and filed the lawsuit."

Bowers lawsuit seeks undisclosed attorneys fees, costs of the current lawsuit, interest on legal fees and punitive damages.