                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON
                                      August 11, 2015 Session

    CHANDRA L. BERRY v. MORTGAGE ELECTRONIC REGISTRATION
                         SYSTEMS, ET AL.

                  Direct Appeal from the Chancery Court for Shelby County
                          No. CH1210532    James Kyle, Chancellor


                    No. W2014-02175-COA-R3-CV – Filed August 31, 2015


This appeal involves the assignment of a deed of trust. Plaintiff/Appellant purchased a
home in Memphis in 2004 and later defaulted on her mortgage. Appellees advised of
their intent to foreclose on the home, which prompted Plaintiff to file suit and obtain a
temporary restraining order preventing foreclosure. Plaintiff asserted several legal
theories, which were all dismissed by the trial court. Plaintiff appealed, and this Court
affirmed the trial court‟s dismissal on all but one fraud claim. Upon remand, the trial
court then granted Appellees‟ motion for summary judgment on the remaining fraud
claim. Plaintiff appeals. We affirm.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
                                     and Remanded

BRANDON O. GIBSON, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and KENNY ARMSTRONG, J., joined.

Archie Sanders, Memphis, Tennessee, for the appellant, Chandra L. Berry

Bradley E. Trammell and Kavita Goswamy Shelat, Memphis, Tennessee, for the
appellees, Mortgage Electronic Registration Systems, Inc., and Wells Fargo Bank, N.A.

                                   MEMORANDUM OPINION1

1
    Tennessee Court of Appeals Rule 10 provides:

          This Court, with the concurrence of all judges participating in the case, may affirm,
          reverse or modify the actions of the trial court by memorandum opinion when a formal
          opinion would have no precedential value. When a case is decided by memorandum
          opinion it shall be designated “MEMORANDUM OPINION”, shall not be published, and
          shall not be cited or relied on for any reason in any unrelated case.
                        I.     FACTS & PROCEDURAL HISTORY

      This is the second appeal of this case. The facts of this case, as set out by the
Court in Berry v. Mortgage Electronic Registration Systems, No. W2013-00474-COA-
R3-CV, 2013 WL 5634472, at *1 (Tenn. Ct. App. Oct. 15, 2013), reh‟g denied (Nov. 13,
2013) are:

      On August 5, 2004, plaintiff Chandra Berry purchased property located at
      6215 Malloch Drive in Memphis, Tennessee (the “Property”). At some
      point, Ms. Berry defaulted on her mortgage obligation and she attempted to
      negotiate a loan modification and refinancing. The defendants, Mortgage
      Electronic Registration Systems (“MERS”) individually and as nominee for
      Mortgage Lenders Network USA, Wells Fargo Home Mortgage d/b/a
      American Servicing Company, and Wilson & Associates, PLLC, as
      successor trustee, who claim to hold the Deed of Trust on Ms. Berry‟s
      property, however, did not agree to modify or restructure the loan, and
      instead advised Ms. Berry that they planned to foreclose on her home on or
      about June 29, 2012.

      On June 27, 2012, Ms. Berry, with the assistance of counsel, filed a
      pleading in the Shelby County Chancery Court styled “Complaint for
      Declaratory Judgment and for Ex Parte Temporary Restraining Order and
      Injunctive[ ] Relief and for Damages and other Legal and Equitable Relief”
      (“Complaint”) against the defendants. The Complaint was amended the
      following day (“Amended Complaint”), and the chancery court issued a
      temporary restraining order enjoining Defendants from foreclosing upon,
      removing, or evicting Ms. Berry from the Property. Defendants MERS and
      Wells Fargo (together “Defendants”) then filed an Answer and a Motion for
      Judgment on the Pleadings pursuant to Tennessee Rule of Civil Procedure
      12.03. On December 10, 2012, the chancery court entered an order granting
      the motion for judgment on the pleadings stating that “many of the
      allegations [are] overly generalized and non-specific, while in other areas,
      the Amended Complaint is simply devoid of facts which could legally
      entitle Plaintiff to relief.” The order was made final pursuant to Tennessee
      Rule of Civil Procedure 54.02, and Ms. Berry timely appealed to this Court.

Id. This Court affirmed the chancery court‟s ruling, with the exception of a single fraud
claim alleging that Wells Fargo recorded Plaintiff‟s deed of trust knowing that it
contained falsely represented signatures. Id. at *5. We noted that while “[c]ertainly, Ms.
Berry‟s Amended Complaint is not a model of clarity…. we find that Ms. Berry‟s
allegation of fraud stemming from an intentional misrepresentation was pled with
                                            2
sufficient particularity to survive a motion for judgment on the pleadings.” Id. at *6.

       On remand, Defendants filed a motion for summary judgment, and the chancery
court examined the intentional misrepresentation claim and found no disputed facts and
that there was no fraud or misrepresentation. Further, the court found that because Ms.
Berry was not a party to the assignment of the deed of trust, she did not have standing to
challenge the assignment. Based on those findings, the chancery court granted
Defendants‟ motion for summary judgment. Ms. Berry timely appealed to this Court.

                                   II.     ISSUE PRESENTED2

       Plaintiff/Appellant presents the following issue for review on appeal:

       1.      Whether the trial court erred in granting Defendants‟ Motion for
               Summary Judgment and denying Plaintiff‟s Motion to Alter or
               Amend Judgment.

                                 III.    STANDARD OF REVIEW

       A motion for summary judgment should be granted only “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” Tenn. R. Civ. P. 56.04. “The
party seeking the summary judgment has the burden of demonstrating that no genuine
disputes of material fact exist and that it is entitled to a judgment as a matter of law.”
Green v. Green, 293 S.W.3d 493, 513 (Tenn. 2009) (citing Martin v. Norfolk S. Ry., 271
S.W.3d 76, 83 (Tenn. 2008); Amos v. Metro. Gov’t of Nashville & Davidson County, 259
S.W.3d 705, 710 (Tenn. 2008)). “If reasonable minds could justifiably reach different
conclusions based on the evidence at hand, then a genuine question of fact exists.” Id. at
514 (citing Martin, 271 S.W.3d at 84; Louis Dreyfus Corp. v. Austin Co., 868 S.W.2d
649, 656 (Tenn. Ct. App. 1993)). “If, on the other hand, the evidence and the inferences
reasonably drawn from the evidence would permit a reasonable person to reach only one
conclusion, then no material factual dispute exists, and the question can be disposed of as
a matter of law.” Id. (citing Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002); Seavers
v. Methodist Med. Ctr. of Oak Ridge, 9 S.W.3d 86, 91 (Tenn. 1999)).

      Because this lawsuit was filed in 2012, resolution of the motion for summary
judgment is governed by Tennessee Code Annotated section 20-16-101, which provides:

2
 We urge the parties to refer to Tennessee Rule of Appellate Procedure 30 for the correct format when
submitting briefs.
                                                   3
      In motions for summary judgment in any civil action in Tennessee, the
      moving party who does not bear the burden of proof at trial shall prevail on
      its motion for summary judgment if it:
             (1) Submits affirmative evidence that negates an essential element of
      the nonmoving party‟s claim; or
             (2) Demonstrates to the court that the nonmoving party‟s evidence is
      insufficient to establish an essential element of the nonmoving party‟s
      claim.

Tenn. Code Ann. § 20-16-101 (Supp. 2014). Summary judgments do not benefit from a
presumption of correctness on appeal, so we must make a fresh determination that the
requirements of Rule 56 have been satisfied in each case. Green, 293 S.W.3d at 514.
“The reviewing courts must also consider the evidence in the light most favorable to the
non-moving party and draw all reasonable inferences in the non-moving party‟s favor.”
Id. (citing Cumulus Broad., Inc. v. Shim, 226 S.W.3d 366, 373-74 (Tenn. 2007); Abbott v.
Blount County, 207 S.W.3d 732, 735 (Tenn. 2006)).

                                  IV.    DISCUSSION

                                A. Summary Judgment

       As a threshold matter, we must consider Ms. Berry‟s standing. The question of
standing is an issue of law, which we review de novo. In re Estate of Smallman, 398
S.W.3d 134, 148 (Tenn. 2013) (citing Cox v. Shell Oil Co., 196 S.W.3d 747, 758 (Tenn.
Ct. App. 2005)). “Standing is a judge-made doctrine based on the idea that „[a] court
may and properly should refuse to entertain an action at the instance of one whose rights
have not been invaded or infringed.‟” Cox, 196 S.W.3d at 758 (citing 59 Am.Jur.2d
Parties § 30 (1987)). The primary focus of the standing inquiry is on the party, not on
the merits of the claims asserted. Id.

       Ms. Berry signed a Note and Deed of Trust dated August 5, 2004, for $270,000
with regard to the property located at 6215 Malloch Drive, Memphis, TN 38119. Ms.
Berry‟s executed Note stated that the “Lender is Mortgage Lenders Network USA, Inc.”
(“Mortgage Lenders”). The Note was made payable by Mortgage Lenders to EMAX
Financial Group, LLC, who made the Note payable to Residential Funding Corporation,
who lastly made the Note payable to JP Morgan Chase Bank, as trustee. MERS “as
nominee for Mortgage Lenders Network USA, Inc., its successors and assigns,” assigned
the Deed of Trust to The Bank of New York Mellon Trust Company, N.A. as successor
to JP Morgan Chase Bank.

      In her one remaining claim in the trial court, Ms. Berry alleged a flaw in the
                                           4
assignment of the Deed of Trust, based on the argument that Wells Fargo employee Kate
Johnson, the individual who executed the assignment of the Deed of Trust, did not have
the authority to do so. However, even assuming a flaw in the assignment, Ms. Berry does
not have standing to raise it. See Livonia Properties Holdings, LLC v. 12840-12976
Farmington Rd. Holdings, LLC, 399 Fed. Appx. 97, 102 (6th Cir. 2010). “[T]here is
ample authority[3] to support the proposition that „a litigant who is not a party to an
assignment lacks standing to challenge that assignment.‟” Id. (citation omitted). Thus,
we agree with the chancery court‟s determination that “as a matter of law, Defendants‟
Motion for Summary Judgment should be granted on this basis….”

       In the interest of judicial economy, we also address the merits of Ms. Berry‟s
claim and the focus of her argument on appeal. Ms. Berry‟s intentional misrepresentation
claim specifically challenges whether Kate Johnson had the authority to execute the
assignment of the deed of trust. She argues that Ms. Johnson, a Wells Fargo employee,
did not have the authority to execute an assignment of the deed of trust between MERS
and The Bank of New York Mellon. However, even if Ms. Berry had standing to
challenge the validity of the assignment, there are no disputed facts in the record to

3
 The district court in Livonia Properties Holdings, LLC provided the following citations, on which the 6th
Circuit relied:

        Liu v. T & H Mach. Inc., 191 F.3d 790 (7th Cir. 1999) (party to underlying contract lacks
        standing “to attack any problems with the reassignment” of that contract; Blackford v.
        Westchester Fire Ins. Co., 101 F. 90 (8th Cir. 1900) (As long as no creditor of the
        assignor questions the validity of the assignment, a debtor of the assignor cannot do so.”);
        Byczek v. Boelter Cos., 230 F.Supp.2d 843 (N.D. Ill. 2002) (same); Nicolls Pointing
        Coulson, Ltd. V. Transp. Underwriters of La., Inc., 777 F.Supp. 493 (E.D. La. 1991) (“a
        debtor cannot challenge an assignment of a debt by a creditor unless he can show he is
        prejudiced by the assignment”); The Prussia, 100 F. 484 (D.C. Wash. 1900) (holding the
        validity of an assignment cannot be collaterally attacked on the ground of alleged
        technical irregularities by a non-party to the assignment, where no objection is made by
        the assigning entity); In re Holden, 271 N.Y. 212, 2 N.E.2d 631 (1936) (“The
        assignments were valid upon their face. The assignee was the legal owner of the claims
        assigned. No one could question the validity of the assignments except the assignors.”);
        Pagosa Oil and Gas, L.L.C. v. Marrs and Smith P’ship, No. 08-07-00090, 323 S.W.3d
        203, 2010 WL 450910 (Tex. App. Feb. 10, 2010) (finding lessor lacked standing to
        challenge assignment of lessee‟s breach of lease action because lessor was not party or
        third-party beneficiary to assignment contract); Richard A. Lord, 29 WILLISTON ON
        CONTRACTS § 74:50 (4th Ed.) (“the debtor has no legal defense [based on invalidity of
        the assignment] … for it cannot be assumed that the assignee is desirous of avoiding
        the assignment.”) (emphasis added).

Livonia Prop. Holdings, L.L.C. v. 12840-12976 Farmington Rd. Holdings, L.L.C., 717 F. Supp. 2d 724,
736-37 (E.D. Mich. 2010) aff'd sub nom. Livonia Properties Holdings, LLC v. 12840-12976 Farmington
Rd. Holdings, LLC, 399 Fed. Appx. 97 (6th Cir. 2010).
                                                  5
support her claim. Defendants submitted Ms. Johnson‟s affidavit, which stated that in
addition to being a Wells Fargo employee, she was also a Signing Officer for MERS,
which granted her the authority to execute the assignment of Ms. Berry‟s Deed of Trust,
and that she was, in fact, the person who executed the assignment. Included as an exhibit
to her affidavit is a Corporate Resolution of MERS dated August 2, 2011, which, among
other duties, authorizes Ms. Johnson to execute an assignment of a deed of trust. These
facts are undisputed in the record. Therefore, we agree with the chancery court‟s finding
that “there are no false signatures in this case, including any false signatures regarding
the assignment of Ms. Berry‟s Deed of Trust….”

       In addition to the issue raised on appeal, Ms. Berry makes several other
arguments. Ms. Berry‟s arguments appear to be that MERS did not have the right to
assign the mortgage, that Wells Fargo lacked standing to initiate foreclosure proceedings,
that Wells Fargo lacks the ability to foreclose because there is no proof that it possesses
the original Note, and that information received from an expert states that the signature
on the Amanda Weatherly affidavit is not genuine.

        We remanded the first appeal of this case with only a single intentional
misrepresentation claim left intact. See Berry v. Mortgage Electronic Registration
Systems, No. W2013-00474-COA-R3-CV, 2013 WL 5634472, at *6 (Tenn. Ct. App. Oct.
15, 2013), reh‟g denied (Nov. 13, 2013). We held that “Ms. Berry‟s allegation of fraud
stemming from an intentional misrepresentation was pled with sufficient particularity to
survive a motion for judgment on the pleadings,” but also “[w]ith regard to [her]
remaining fraud allegations…we find that the Amended Complaint fails to satisfy the
requirements of Rule 9.02.” Id. We similarly affirmed the chancery court‟s dismissal of
all other raised claims with regard to either the deed of trust or the foreclosure. Id. at *2-
6.

        “Our supreme court first recognized the power of a reviewing court to limit orders
of remand in Perkins v. Brown, 132 Tenn. 294, 177 S.W. 1158 (1915).” Melton v.
Melton, M2003-01420-COA-R10-CV, 2004 WL 63437, at *4 (Tenn. Ct. App. Jan. 13,
2004). We later stated that “[i]t is to the interest of all that there be a constraint on
unnecessary litigation,” and that “by remanding a case with limiting instructions when
error exists as to only certain issues, the courts maintain the integrity of rulings
previously made.” Id. at *5. This case was remanded solely for the chancery court to
examine the intentional misrepresentation claim. Therefore, Ms. Berry‟s arguments that
are outside the scope of the remand are not properly before this Court, and we decline to
consider them.




                                              6
                               B. Motion to Alter or Amend Judgment

      A motion to alter or amend a judgment should be granted when the controlling law
changes before a judgment becomes final, when previously unavailable evidence
becomes available, or when a judgment should be corrected to prevent a clear error of
law or injustice. In re M.L.D., 182 S.W.3d 890 (Tenn. Ct. App. 2005). Conversely, it
should not be used to “present new, previously untried or unasserted theories or legal
arguments.” Id. at 895. “A trial court‟s determination of whether to grant a Rule 59.04
motion to alter or amend a judgment is reviewed under an abuse of discretion standard.”
Linkous v. Lane, 276 S.W.3d 917, 924 (Tenn. Ct. App. 2008) (citing Stovall v. Clarke,
113 S.W.3d 715, 721 (Tenn. 2003)).

       Ms. Berry‟s motion to alter or amend the summary judgment ruling asserted issues
not before the chancery court on remand and previously unasserted legal theories
regarding the remaining fraud claim.4 As such, the chancery court did not abuse its
discretion in denying Ms. Berry‟s Rule 59 motion to alter or amend.

                                        V. CONCLUSION

        For these reasons, the decision of the chancery court is affirmed. Costs of this
appeal are taxed to appellant, Chandra L. Berry, and her surety, for which execution may
issue, if necessary.



                                                      _________________________________
                                                      BRANDON O. GIBSON, JUDGE




4
 The additional arguments raised in Ms. Berry‟s Rule 59.04 motion are the same arguments she attempts
to raise on appeal.
                                                  7
