                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                 October 18, 2013 Session

            STEVE DICKERSON ET AL. V. REGIONS BANK ET AL.

               Appeal from the Chancery Court for Williamson County
                         No. 35580   Robbie T. Beal, Judge




              No. M2012-01415-COA-R3-CV            - Filed March 19, 2014


Plaintiffs, husband and wife, filed this action on February 17, 2009, to quiet title to property
they own in Williamson County, Tennessee. At issue was a Deed of Trust that secured a 1997
promissory note, with an original maturity date in 1998, executed by a South Carolina limited
liability company of which the plaintiff husband was a member. Plaintiffs asserted, inter alia,
that the statute of limitations for the 1997 note and deed of trust had lapsed; therefore, the
deed of trust encumbering their property should be released. Defendant Beta, LLC, filed a
counterclaim for judicial foreclosure asserting it was the assignee of an October 8, 1998
renewal note with a maturity date of October 1999, the maturity date of which was
subsequently extended to October 2000 pursuant to a Change in Terms Agreement executed
in October 1999. It is based on the Change in Terms Agreement that Beta insists the statute
of limitations had not lapsed and it is entitled to enforce the deed of trust. Although Beta was
unable to produce an original or photocopy of an October 1998 renewal promissory note or
evidence that complied with Tenn. Code Ann. § 24-8-101 to prove it was a lost negotiable
instrument, the trial court held that a copy of the 1999 Change of Terms Agreement was
sufficient to established the existence of the October 1998 renewal note and the extension
of the maturity date to 2000; thus the statute of limitations had not run and Beta was vested
with the right to enforce the deed of trust. Therefore, the court dismissed Plaintiffs complaint
to quiet title and ruled in favor of Beta on the issue of foreclosure. On appeal Plaintiffs
contend that the evidence was insufficient to support the court’s rulings. Particularly,
Plaintiffs contend the trial court erred in finding that the Change in Terms Agreement dated
October 8, 1999, was sufficient to establish Beta’s claims under an October 1998 promissory
note of which there is no copy. We have determined the trial court erred in finding that the
evidence was sufficient to satisfy Beta’s burden of proof as the foreclosing party. We,
therefore, reverse the judgment of the trial court and remand this matter for further
proceedings consistent with this opinion, including a determination of the specific relief to
which Plaintiffs may be entitled.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court is Reversed

F RANK G. C LEMENT, JR., J., delivered the opinion of the Court, in which A NDY D. B ENNETT
and R ICHARD H. D INKINS, J.J., joined.

Daniel L. Wischof, Franklin, Tennessee, for the appellants, Steve Dickerson and Deborah
Dickerson.

W. Kennerly Burger, Murfreesboro, Tennessee, for the appellees, Beta, LLC, and Sound
Marketing, LLC.

                                        OPINION

       Plaintiff Steve Dickerson is one of five individuals who, in 1997, founded Sound
Marketing, LLC (“Sound Marketing”), a South Carolina limited liability company, to engage
in a multi-level marketing business selling compact discs. On October 10, 1997, Sound
Marketing borrowed $500,000 from Spartanburg National Bank pursuant to a promissory
note to capitalize the company. The note was executed on behalf of Sound Marketing by
Wayne Plylar and Darvin Shoemaker, both founding members, who were authorized by the
members of Sound Marketing to execute the note on behalf of Sound Marketing. The due
date of the original note was April 8, 1998.

        Each member was personally liable for a pro rata share of the debt, and some of the
members executed deeds of trust as collateral for their respective obligations. Concurrent
with the execution of the 1997 note, Steve Dickerson and his wife Deborah (“Plaintiffs”)
executed a Deed of Trust, that encumbered a thirteen acre tract of unimproved land they
owned in Williamson County; the deed of trust was duly recorded and its authenticity is not
at issue. By its terms, the deed of trust secured the note executed by Sound Marketing and
“all modifications or extensions thereto, all renewals thereof, and all replacement notes
thereof.”

      Soon after the note was executed, Spartanburg National Bank was acquired by
Regions Bank. On April 8, 1998, Sound Marketing executed a renewal of the note with
Regions Bank and the maturity date was extended six months to October 6, 1998.

       As time passed, it became apparent that the marketing model for Sound Marketing
was flawed and it ceased doing business. Over the next three years, Mr. Plylar states that he
personally paid interest on the note to avoid default. In 2002, Mr. Plylar corresponded with
the members advising them that he would no longer pay the note and demanded contributions
from the members.

                                            -2-
        On September 18, 2006, Mark M. Wright, a Brentwood, Tennessee attorney, writing
on behalf of Sound Marketing, LLC, made a written demand on Plaintiffs for payment of the
note, stating they were in default and threatening foreclosure on the property secured by the
deed of trust. In a letter dated September 25, 2006, J. Timothy Street, a Franklin, Tennessee
attorney, responded on behalf of Plaintiffs, disputing any liability on the note. In the same
letter, Mr. Street requested Mr. Wright to forward proof of the debt and, in addition, “the
name, address, and phone number of the current note holder.”

        By letter dated January 3, 2007, Mr. Street also sent a letter to Regions Bank
demanding release of the deed of trust, citing Tenn. Code Ann. § 66-25-102, which governs
liability for one’s failure to release a deed of trust that has been satisfied.

      On March 6, 2007, attorney Mark Wright, corresponding on behalf of his client Sound
Marketing, provided Plaintiffs with copies of the following documents:

       Regions Bank Business Loan
       Loan Authorization signed by Dickersons
       Assignment of Note by Regions to Sound Marketing, LLC
       Deed of Trust

      Mr. Wright’s letter also stated: “As indicated on the documents, this note is currently
held by Sound Marketing, LLC, 3501 Rutherford Road Ext., PO Box 68, Taylors, SC
29687.”

       On August 9, 2007, Mr. Street, again acting on behalf of Plaintiffs, wrote attorney
Wright insisting that the deed of trust had been fully extinguished and, therefore, it should
be released as outlined in his January 3, 2007 letter. Mr. Street also stated:

       If it is your position that the obligation secured by said Deed of Trust has not
       been satisfied in full, please provide documentation in support thereof to my
       office at the above address. In our letter of June 18, 2007, we asked for
       documentation which has yet to be forwarded to this office. If we do not hear
       from your office within the next 30 days, we will pursue our remedies under
       TCA 66-25-102(b).

        More than one year later, on December 1, 2008, Mr. Street again wrote Mr. Wright
stating, as before, Plaintiffs insist the obligation secured by the deed of trust encumbering
their property has been fully extinguished and stating that his clients were “making their third




                                              -3-
demand for release of the Deed of Trust.” He also restated his position that he had not
received the specific documentation requested in his June 18, 2007 letter.1

        On February 17, 2009, Plaintiffs commenced this action to quiet title to their property
by filing a Verified Petition for Declaratory Judgment in the Chancery Court for Williamson
County against Regions Bank, Sound Marketing, LLC, and Beta, LLC,2 and the trustee under
the deed of trust. The only defendants relevant to this appeal are Sound Marketing and Beta.3

        Plaintiffs asserted the following relevant facts in the complaint:

        6.       On or about October 10, 1997, Petitioners Steve and Deborah
                 Dickerson executed a Deed of Trust which encumbered real estate
                 owned by them located in Williamson County, Tennessee. The Deed of
                 Trust is of record in Deed Book 1582, Page 294, Register’s Office for
                 Williamson County, Tennessee. A copy of the Deed of Trust is attached
                 hereto as Exhibit 1.

        7.       The Deed of Trust secured a Promissory Note executed by Sound
                 Marketing, LLC in favor of Regions Bank. The loan date of the Note
                 was April 8, 1998 and has a maturity date of October 6, 1998. A copy
                 of the Promissory Note is attached hereto as Exhibit 2.

        8.       On September 18, 2006, Sound Marketing, LLC, through its counsel,
                 made demand on Petitioners for payment of the Promissory Note
                 denominated as Exhibit 2, alleging that Petitioners were in default of
                 said Note and threatening foreclosure of the subject real estate. A copy
                 of the collection letter is attached hereto as Exhibit 3.




        1
         Mr. Street’s correspondence to Mr. Wright dated August 9, 2007 and December 1, 2008, were
attached to the Verified Complaint but were not introduced into evidence. We have mentioned them to
provide a more complete explanation of the activities of the parties prior to suit; however, we do not consider
them as evidence.
        2
        Although Mr. Wrights’ letter to attorney Street dated March 6, 2007, stated that one of the
enclosures was the “Assignment of Note by Regions to Sound Marketing, LLC,” the Assignment states that
Beta, LLC, not Sound Marketing, was the assignee.
        3
          The record does not expressly state that Regions Bank was voluntarily dismissed, however, the
briefs and oral argument suggest Regions Bank was voluntarily dismissed and it is acknowledged that the
trustee is merely a nominal party; neither is a party to this appeal.

                                                     -4-
9.    In response to the communication received from the debt collector for
      Sound Marketing, LLC, Petitioners responded by letter dated
      September 25, 2006, in which they informed Sound Marketing, LLC
      that they disputed any liability on the Promissory Note. A copy of the
      communication is attached here to as Exhibit 4.

10.   In follow up to the demand made by Sound Marketing, LLC, Plaintiffs
      forwarded a letter to Regions Bank pursuant to T.C.A. § 66-25-102
      demanding release of the Deed of Trust. A copy of the letter and the
      return receipt evidencing delivery to Regions Bank is attached hereto
      as Exhibit 5.

11.   Thereafter, on March 6, 2007, Sound Marketing, LLC forwarded to
      counsel for the Petitioners a letter with documents enclosed. The
      documents attached to the letter included a copy of the Promissory Note
      denominated as Exhibit 2.

12.   The letter dated March 6, 2007, also stated that enclosed therein were
      copies of the assignment of the Note by Regions to Sound Marketing,
      LLC. However, no assignment of the Note was included in the package.
      A copy of the letter dated March 6, 2007 is attached hereto as Exhibit
      6.

13.   On information and belief, the Promissory Note executed by Sound
      Marketing, LLC dated April 8, 1998, included herein as Exhibit 2, has
      been paid in full and is no longer of any force and effect.

14.   Thereafter, on August 9, 2007, Plaintiffs forwarded to counsel for
      Sound Marketing, LLC a second demand letter pursuant to T.C.A. § 66-
      25-102(b), demanding for the second time that the Deed of Trust
      encumbering their real property be released. A copy of the letter is
      attached hereto as Exhibit 7.

15.   Because the return receipt was not returned to the Petitioners, on
      December 1, 2008, they had mailed a third demand for release pursuant
      to T.C.A. § 66-25-102(b), a copy of the letter and return receipt are
      attached hereto as Exhibit 8.




                                    -5-
       16.        To date, the Deed of Trust encumbering Petitioner’s real property
                  remains unreleased despite repeated requests by Plaintiffs to
                  Respondents to remove same.

       Based upon the above facts, Plaintiffs asserted that the note executed by Sound
Marketing matured on October 6, 1998, and pursuant to the ten-year statute of limitations in
Tenn. Code Ann. § 28-2-111(a), the deed of trust they executed to secure the note was time
barred and should be discharged.

       Sound Marketing and Beta filed a joint answer and a counter-claim for enforcement
of the deed of trust by judicial foreclosure. Sound Marketing and Beta asserted that, when
the original note matured, the loan was extended by a renewal promissory note dated April
8, 1998, with a maturity date of October 8, 1998. Defendants also asserted that following the
maturity of this note on October 6, 1998, another renewal note was entered on October 8,
1998. Although no copy of the purported October 8, 1998 renewal note is in the record,
Defendants asserted that the existence of such note is evidenced by the Change in Terms
Agreement dated October 8, 1999, which states the maturity date was extended to January
8, 2000. Sound Marketing and Beta further asserted that the note and deed of trust were
assigned by Regions Bank in 2003 to Beta (not Sound Marketing as represented in Mr.
Wright’s March 6, 2007 letter).4

       The case was tried on April 9, 2012; the testimony was limited to two witnesses, Steve
Dickerson and Wayne Plylar, and several documents were admitted into evidence either by
stipulation or through the witnesses. No original documents evidencing the note, or any
renewal thereof, or assignment were admitted into evidence; only photocopies. The only
documents entered into evidence that related to the underlying indebtedness at issue included:

       (1) Photocopy of the Sound Marketing - Spartanburg National Bank
       “Promissory Note” dated October 10, 1997, with a maturity date of April 8,
       1998, in the principal amount of $500,000;

       (2) Photocopy of the Sound Marketing - Regions Bank “Promissory Note”
       dated April 8, 1998, with a maturity date of October 6, 1998, in the principal
       amount of $500,000 (this was the renewal of Sound Marketing’s original note
       with Spartanburg National Bank dated October 10, 1997);




       4
           Neither Beta or Sound Marketing sought to sue on the note, merely to enforce the deed of trust.

                                                     -6-
        (3) Photocopy of the “Change in Terms Agreement” dated October 8, 1999,
        between Sound Marketing and Regions Bank (no note or photocopy of a note
        was attached to the Change in Terms Agreement);5 and

        (4) Photocopy of the “Assignment of Note and Deed of Trust” from Regions
        Bank to Beta, LLC, assigning the Deed of Trust executed by Deborah and
        Steve Dickerson dated October 10, 1997, together with the indebtedness in the
        original principal sum of $500,000 and the Note evidencing the indebtedness;
        the assignment was dated May 15, 2003.6

         Wayne Plylar testified that he was a founding member of Sound Marketing, he served
as its president, and he executed the note on behalf of Sound Marketing. He also testified that
he was the manager of Beta, LLC, which was also a South Carolina limited liability
company. He explained the members of Beta were his wife and children, and while he served
as the manager of Beta, he was not a member.

       As for the original of the promissory note, the change in terms agreement and the
assignment, Mr. Plylar testified that he did not have an original of any of the documents and
he had no idea as to who, if anyone, had the originals. He also stated he did not know if he




        5
         The missing document, a purported October 6, 1998 renewal note [not to be confused with the
April 8, 1998 note] that purportedly extended the maturity date to 1999, of which there is no photocopy in
the record, would logically have been identified chronologically between items (2) and (3). Whether a
purported October 6, 1998 renewal note ever existed is discussed in detail later in this opinion.
        6
            The May 15, 2003 Assignment reads in pertinent part:

        For Value Received, Regions Bank, hereby sells, assigns, transfers, sets over and conveys
        unto Beta, LLC, a South Carolina limited liability company, whose address is 955 Nazareth
        Church Road, Moore, SC, 29369, its successors and/or assigns, that certain Deed of Trust
        executed by Deborah Dickerson, Steve Dickerson, Brett Q. Barry and Erin A. Barry, dated
        October 10, 1997, and recorded in Book 1582, page 294, Register’s Office of Williamson
        County, Tennessee and Book 10662, page 40, Register’s Office of Davidson County,
        Tennessee, together with the real property therein described; and also the indebtedness in
        the original principal sum of $500,000.00 as described in said Deed of Trust, and secured
        thereby, the Note evidencing said indebtedness having this day been transferred and
        assigned to the said assignee, Beta, LLC, together with all right, title and interest in and to
        the said Deed of Trust, the property therein described and the indebtedness secured; and the
        said assignee, Beta, LLC, is hereby subrogated to all rights, powers, privileges and securities
        vested in the Trustee, James T. Oglesby of Williamson County, under and by virtue of the
        aforesaid deed of trust.

                                                     -7-
ever had the original of any note. The parties also stipulated that neither Mr. Plylar nor Beta
had any original documents evidencing the note or any extensions or amendments of the
notes executed by Sound Marketing.

        Notwithstanding the letters from Mr. Wright in 2007 and 2008, wherein he
represented that Sound Marketing owned the note, Mr. Plylar testified that Beta acquired the
note from Regions Bank by written assignment dated May 15, 2003, pursuant to the
Assignment of Note and Deed of Trust (“the Assignment”). The Assignment identified the
original note of $500,000 and the deed of trust executed by Plaintiffs; however, no original
or photocopy of a note was attached to the Assignment. Mr. Plylar testified that he did not
recall whether he or his attorneys ever received an original note. Nevertheless, he said he had
looked for it and it could not be located.

       On direct examination, Mr. Plylar testified that a personal loan was obtained in his
wife’s name to pay off the note and that he requested Regions Bank to assign the note to
Beta, LLC, since Beta was a family company. On cross-examination he was asked about the
particulars of the bank transaction and the documentation, specifically, what happened to the
original documents, including the note. Pertinent portions of that testimony are as follows:

       Q. And you [Mr. Plylar] don’t recall whether the bank ever surrendered a Note or a
       Change in Terms Agreement to you or a Change in Terms Agreement to you or
       endorsed it over to you or Beta or anybody else, do you?

       A. I don’t--I have--I have supplied what I have.

       Q. Okay. Is it your testimony that that Note wasn’t marked “paid in full”?

       A. I do not remember those details.

       Q. Okay. But you’re not coming here today with a Note that’s endorsed on the back
       paid to the order of Beta, LLC? Well, you don’t have the original Note?

       A. I don’t have the Note.

       Q. Okay. You don’t even have a copy of the Note that’s supposed to have been
       changed by the Change in Terms Agreement?

       A. I have--you have what I have.




                                              -8-
       A photocopy of the Change in Terms Agreement dated October 8, 1999, was
introduced and made an exhibit. The Change in Terms Agreement identified Sound
Marketing as the “borrower” and Regions Bank as the “lender” of a loan in the principal
amount of $500,000.00. The following is excerpted from the Change in Terms Agreement:

      Principal Amount: $500,000.00

      DESCRIPTION OF EXISTING INDEBTEDNESS. The Promissory Note
      from Sound Marketing, LLC to Lender dated October 8, 1998 in the amount
      of $500,000.00.

      DESCRIPTION OF COLLATERAL. The Note is secured by . . . a Deed of
      Trust dated October 10, 1997 from Steve and Deborah Dickerson and Brett Q.
      and Erin A. Barry on property and improvements known as 3133 Boulder Park
      Drive, Nashville, Tennessee and Tracts 4 and 5 Eudaily-Covington Road,
      Williamson County, Tennessee[.]

      DESCRIPTION OF CHANGE IN TERMS. The maturity date shall be
      extended to January 8, 2000.

      ***

      CONTINUING VALIDITY. Except as expressly changed by this Agreement,
      the terms of the original obligation or obligations, including all agreements
      evidenced or securing the obligation(s), remain unchanged and in full force
      and effect[.]

      PRIOR NOTE. The Promissory Note from Sound Marketing, LLC to Lender
      dated October 8, 1998.

      Mr. Plylar’s testimony on direct examination concerning the origin of the Change in
Terms Agreement was very succinct:

      Q. What is the origin and what’s your description of the history of that?

      A. That is the -- let’s see. I think that’s the extension to -- yeah, that’s the
      [1999] loan extension.

      ***



                                            -9-
       Q. In between that document [the 1999 Change of Terms Agreement] and
       Exhibit 1 [the original promissory Note], were there other intervening
       renewals?

       A. I don’t -- there probably were. I don’t –

       Q. My next question is: Do you have copies of all of those?

       A. I don’t.

On re-direct, Mr. Plylar’s counsel then attempted to clarify, via a confusing compound
question:

       Q. Have you conducted a diligent intense search from the time we started this
       proceeding to try to locate the originals of these documents that you’ve been
       provided copies of? You flat don’t have them and don’t know where to get
       them?

       A. I don’t.

       Q. You don’t remember sending them to these other attorneys; do you
       remember giving them to any other members, any slight memory about where
       the -- first of all, were the originals ever in your possession?

       A. I can’t say for sure, but I -- that’s a good point, you know. I may well have
       sent them to --

       Q. You’re sure you don’t have them and you couldn’t get them from any other --

       A. No. I’ve got files this thick, and I’ve been through them entirely. But that
       is a possibility that I did --

        At the conclusion of the bench trial the court explained that the real issues in regard
to the deed of trust were whether “there is an enforceable obligation and is the person
enforcing it the right person to enforce it.” The trial court then ruled in favor of Beta
explaining that the decision was based, inter alia, on findings that the October 1999 Change
of Terms Agreement sufficiently established the existence of an October 6, 1998 renewal
note; that the note and deed of trust were assigned to Beta thereby vesting Beta with the right
to enforce the deed of trust; that the Change in Terms Agreement extended the maturity of



                                             -10-
the note until January 8, 2000; that the ten-year statute of limitations had not lapsed. The
relevant portions of the ruling, as they are stated in the final order, read as follows:

       4. Although the Dickersons, in their original Petition, aver that the ten-year
       limitation of T.C.A. § 28-2-111 began to run upon the maturity of the Second
       Note on October 6, 1998, the Court rejects this argument because it finds that
       the final maturity of the latest Note secured by the Deed of Trust was January
       6, 2000. On October 8, 1999, Sound Marketing executed a “Change in Terms
       Agreement” in favor of Regions Bank, specifically referencing the subject
       deed of trust as collateral, and extending until January 6, 2000, the maturity
       date of a Note from Sound Marketing for $500,000.00 dated October 8, 1998.
       Although no party produced the original or a copy of an October 8, 1998 Note,
       the Court finds that the “Change in Terms Agreement” is sufficient to establish
       an October 8, 1998 Note.

       5. The October 8, 1998 Note was negotiated to Beta, LLC. On May 15, 2003,
       an instrument captioned “Assignment of Note and Deed of Trust” was
       notarized by a Spartanburg, S.C. notary. The instrument provides in pertinent
       part that[:]

              Regions Bank, hereby sells, assigns, transfers, sets over and
              conveys unto Beta, LLC, a South Carolina limited liability
              company * * * that certain Deed of Trust executed by Deborah
              Dickerson, Steve Dickerson, Brett Q. Barry and Erin Barry,
              dated October 10, 1997 . . . and also the indebtedness in the
              original principal sum of $500,000.00 as described in said deed
              of trust, and secured thereby, the Note evidencing said
              indebtedness having this day been transferred and assigned to
              the said assignee, Beta, LLC[.]

       The Court finds that this instrument negotiates the October 8, 1998 Note to
       Beta, LLC.

       6. By virtue of said negotiation of the October 8, 1998 Note, Beta, LLC is
       vested with the right to enforce the Dickersons’ Deed of Trust to the extent of
       the $98,000.00 security given thereby.

       7. Beta, LLC counterclaimed in this action on March 25, 2009, more than ten
       years after the maturity of the Second Note on October 6, 2008, but less than



                                            -11-
       ten years after the January 6, 2000 maturity of the October 8, 2008 note as
       extended by the “Change in Terms Agreement.”

                                            I SSUES

      Plaintiffs filed a timely appeal and present three issues for our review. We have
determined that two of the issues are dispositive of this appeal. These issues are:

       1. In the absence of the proof of the existence, terms or disposition of any note
       that may have been in existence after October 6, 1998, the trial court erred in
       finding that a “Change in Terms Agreement,” dated October 8, 1999, is
       sufficient to establish the existence, terms, and disposition of an October 8,
       1998 note.

       2. In the absence of any proof of negotiation by indorsement or attached
       allonge of an undischarged note, the trial court erred in holding that a separate
       “Assignment of Note and Deed of Trust” negotiates the October 8, 1998 note
       to Beta, LLC.

                                   S TANDARD OF R EVIEW

        The standard of review of a trial court’s findings of fact is de novo and we presume
that the findings of fact are correct unless the preponderance of the evidence is otherwise.
Tenn. R. App. P. 13(d); Rawlings v. John Hancock Mut. Life Ins. Co., 78 S.W.3d 291, 296
(Tenn. Ct. App. 2001). For the evidence to preponderate against a trial court’s finding of fact,
it must support another finding of fact with greater convincing effect. See Walker v. Sidney
Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000); The Realty Shop, Inc. v. R.R.
Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct. App. 1999). Where the trial court
does not make findings of fact, there is no presumption of correctness and “we must conduct
our own independent review of the record to determine where the preponderance of the
evidence lies.” Brooks v. Brooks, 992 S.W.2d 403, 405 (Tenn. 1999). Issues of law are
reviewed de novo with no presumption of correctness. Nelson v. Wal-Mart Stores, Inc., 8
S.W.3d 625, 628 (Tenn. 1999).

        A presumption of correctness does not attach to mixed questions of fact and law.
Aaron v. Aaron, 909 S.W.2d 408, 410 (Tenn. 1995) (citing Murdock Acceptance Corp. v.
Jones, 362 S.W.2d 266, 268 (Tenn. Ct. App. 1961)). Although a presumption of correctness
attaches to the trial court’s findings of fact, we are not bound by the trial court’s
determination as to the legal effect of its factual findings, nor by its determination of a mixed
question of law and fact. Travelers Insurance Co. v. Evans, 425 S.W.2d 611, 616 (Tenn.

                                              -12-
1968); Sullivan v. Green, 331 S.W.2d 686, 692-93 (Tenn. 1959).Our standard of review of
rulings on mixed questions of fact and law is de novo with a presumption of correctness
extended only to the trial court’s findings of fact. Abdur’Rahman v. Bredesen, 181 S.W.3d
292, 305 (Tenn. 2005)(citing Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004)).

                                           A NALYSIS

                                      I. D EEDS OF T RUST

        A deed of trust is an instrument which secures with real property the payment of a
debt, typically evidenced by a promissory note. 59 C.J.S. Mortgages, §§15 and 204 (2013).
Promissory notes secured by deeds of trust are generally considered negotiable instruments
governed by Article 3 of the Uniform Commercial Code.

       It is a maxim of the law that the “security follows the debt.” Douglas J. Whaley,
Mortgage Foreclosures, Promissory Notes, and the Uniform Commercial Code, 39 W. S T. U.
L. R EV. 313, 326-27. The United States Supreme Court established this fundamental principle
as early as 1873, stating:

       The note and mortgage are inseparable; the [note] as essential, the [mortgage]
       as an incident. An assignment of the note carries the mortgage with it, while an
       assignment of the [mortgage] alone is a nullity . . . . The mortgage can have no
       separate existence. When the note is paid the mortgage expires. It cannot
       survive for a moment the debt which the note represents.

Id. at 326-27 (quoting Carpenter v. Longan, 83 U.S. 271, 274 (1872)).

       This principle has been reiterated by the Tennessee Supreme Court, which held: “[t]he
policy of the law is to treat the note as the principal thing and the mortgage as the incident --
the transfer of the note secured as a transfer pro tanto of the incident, the lien of the
mortgage.” W.C. Early Co. v. Williams, 186 S.W. 102, 103-04 (Tenn. 1916).

                                II. J UDICIAL F ORECLOSURES

       The almost exclusive means of foreclosure in the State of Tennessee has been non-
judicial, as outlined in Tennessee Code Annotated §§ 35-5-101 et. seq. Nevertheless, judicial
foreclosures in Tennessee, although rarely invoked due to the ease of private sale under
Tennessee deeds of trust, are authorized. See Tenn. Code Ann. § 21-1-803; see also William
H. Inman, Gibson’s Suits in Chancery, §§ 471-73, at 502-506 and 513-514 (7 th ed., 1988)
(hereinafter “Inman”).

                                              -13-
       A lienor is authorized to file a complaint in chancery court and have the property
subject to the lien sold in satisfaction of the indebtedness the lien secures. Inman, supra, at
502-06 and 513-14. Although no special form for judicial foreclosure is required, the
promissory note is to be attached as an exhibit and made a part of the complaint. Id. If a
particular jurisdiction permits both non-judicial or judicial foreclosure, the lender/mortgagee
may elect which remedy to pursue. William M. Howard, Ph.D., Annotation, Necessity of
Production of Original Note Involved in Mortgage Foreclosure — Twenty-First Century
Cases, 86 A.L.R. 6TH 411 (2013) (citing Guardian Depositors Corp. v. Powers, 296 N.W. 675,
678 (Mich. 1941)). Even if the deed of trust contains a power of sale, the lender/mortgagee
may resort to foreclosure by judicial proceedings. Id. (citing Carpenter v. Title Ins. & Trust
Co., 163 P.2d 73, 75 Dist. 1945).

        Prior to 2007, foreclosure did not generate much appellate litigation. Dale A. Whitman
& Drew Milner, Foreclosing on Nothing: The Curious Problem of the Deed of Trust
Foreclosure Without Entitlement to Enforce the Note, 66 A RK. L. R EV. 21, 22 (2013). In the
wake of the post-2008 economic climate and housing market crisis, several jurisdictions have
experienced significant foreclosure litigation as homeowners attempted to retain their homes.
Id. One defense which arose is the so-called “show me the note” defense. Bradley T. Borden,
David J. Reiss & W. KeAupuni Akina, Show Me the Note!, 19 N O. 1 W ESTLAW J. B ANK
L ENDER L IABILITY 1 (2013). In relying upon this defense, homeowners sought to forestall or
revoke foreclosure by requiring the foreclosing party to prove its right to foreclosure via proof
of both the mortgage/deed of trust and the underlying promissory note. Id. Although the states
appear divided on this issue, some of the controversy is explained by context, namely whether
the jurisdiction is called upon to evaluate a non-judicial versus judicial foreclosure. Id at 1-2.
The states which decline to recognize “show me the note” typically do so in the setting of non-
judicial foreclosure action. Id. at 1-2 and 8-9; See e.g. Hogan v. Wash. Mut. Bank, 277 P.3d
781 (Ariz. 2012), Debrunner v. Deutsche Bank National Trust Co., 138 Cal. Rptr. 3d 830
(Cal. Ct. App. 2012), Preston v. Seterus, Inc., 931 F. Supp. 2d 743 (N.D. Tex. 2013) (applying
Texas law), Fedewa v. J.P. Morgan Chase Bank, 921 F. Supp. 2d 504 (E.D. Va. 2013)
(applying Virginia law), Hafiz v. Greenpoint Morg. Funding, Inc., 652 F. Supp. 2d 1039 (N.D.
Cal. 2009).

       On the other hand, in a judicial foreclosure, it is axiomatic that the promissory note
securing a mortgage or deed of trust must be produced and introduced into evidence. 58A
C.J.S. Mortgages § 991 (2014); Fair v. Kaufman, 647 So.2d 167, 168 (Fla.2d Dist. Ct. App.
1994) (holding that to prevail in a foreclosure action the original note and mortgage must be
introduced into evidence); Republic Natl. Bank of N.Y. v. O’Kane, 308 A.D.2d 482, (N.Y.2d
App. Div. 2003) (holding that “[i]n an action to foreclose a mortgage, a plaintiff establishes




                                              -14-
its case as a matter of law through the production of the mortgage, the unpaid note, and
evidence of default”); see also W.H. Downing v. First National Bank of Lake City, 81 So.2d
486, 488 (Fla. 1955), McKay v. Capital Resources Co. Ltd., 327 Ark. 737, 740-41 (Ark.
1997).

                                     III. A SSIGNMENT OF A N OTE

       The parties acknowledge, and the court agrees, that the law of the State of South
Carolina shall apply to issues regarding the promissory note, including the change in terms
agreement and assignment of the note. This is because the 1997 promissory note, which was
between a South Carolina limited liability company, Sound Marketing, and a South Carolina
bank, expressly states that the note shall be governed by the laws of South Carolina. Thus, the
validity, assignment, and enforceability of the note shall be determined according to South
Carolina law.

       As the issues pertain to the enforcement of the deed of trust, however, the parties and
the court are also in agreement that the law of the State of Tennessee shall apply to issues
regarding the deed of trust because it encumbers Williamson County real property.

                    A. T ITLE 36 OF THE C ODE OF L AWS OF S OUTH C AROLINA

      Title 36 of the Code of Laws of South Carolina, 1976 Annotated, codifies the Uniform
Commercial Code for that state; Chapter 3 of that title applies to negotiable instruments. S.C.
Code Ann. § 36-3-102 (2008).

        The “negotiation” of a negotiable instrument is statutorily defined to mean “a transfer
of possession, whether voluntary or involuntary, of an instrument by a person other than the
issuer to a person who thereby becomes its holder.” S.C. Code Ann. § 36-3-201(a) (2008).
Subsection (b) goes on to provide: “Except for negotiation by a remitter, if an instrument is
payable to an identified person, negotiation requires transfer of possession of the instrument
and its indorsement by the holder.” S.C. Code Ann. § 36-3-201(b) (2008) (emphasis added).

       The note at issue was payable to an identified person, Regions Bank; thus, under South
Carolina law, negotiation of the Sound Marketing promissory note to Beta required “transfer
of possession of the instrument” and indorsement by Regions Bank. S.C. Code Ann. §
36-3-204(a) (2008) defines “indorsement” to mean:7


        7
          Subsection (c) of S.C. Code Ann. § 36-3-204 further states: “For the purpose of determining whether
the transferee of an instrument is a holder, an indorsement that transfers a security interest in the instrument
                                                                                                   (continued...)

                                                     -15-
       [A] signature, other than that of a signer as maker, drawer, or acceptor, that
       alone or accompanied by other words is made on an instrument for the purpose
       of (i) negotiating the instrument, (ii) restricting payment of the instrument, or
       (iii) incurring indorser’s liability on the instrument, but regardless of the intent
       of the signer, a signature and its accompanying words is an indorsement unless
       the accompanying words, terms of the instrument, place of the signature, or
       other circumstances unambiguously indicate that the signature was made for a
       purpose other than indorsement. For the purpose of determining whether a
       signature is made on an instrument, a paper affixed to the instrument is a part
       of the instrument.

       S.C. Code Ann. § 36-3-301 (2008) identifies the person entitled to enforce a negotiable
instrument to be:

        (i) the holder of the instrument, (ii) a nonholder in possession of the instrument
       who has the rights of a holder, or (iii) a person not in possession of the
       instrument who is entitled to enforce the instrument pursuant to Section
       36-3-309 or 36-3-418(d). A person may be a person entitled to enforce the
       instrument even though the person is not the owner of the instrument or is in
       wrongful possession of the instrument.

       S.C. Code Ann. § 36-3-309 (2008), referenced in the subsection immediately above,
pertains to the enforcement of a lost, destroyed, or stolen instrument.8 It provides in pertinent
part:

       (a) A person not in possession of an instrument is entitled to enforce the
       instrument if:

                     (1) the person seeking to enforce the instrument:

                             (A) was entitled to enforce the instrument when
                             loss of possession occurred;9 or


       7
         (...continued)
is effective as an unqualified indorsement of the instrument.”
           8
       We have determined that S.C. Code Ann. § 36-3-418(d), which is also referenced in the subsection
immediately above, is not applicable; thus, it shall not be discussed.
           9
               Prior to a 2008 amendment, S.C. Code Ann. § 36-3-309(a)(1) stated that a person not in possession
                                                                                                   (continued...)

                                                        -16-
                        (B) has directly or indirectly acquired ownership of
                        the instrument from a person who was entitled to
                        enforce the instrument when loss of possession
                        occurred;

               (2) the loss of possession was not the result of a transfer by the
               person or a lawful seizure; and

               (3) the person cannot reasonably obtain possession of the
               instrument because the instrument was destroyed, its
               whereabouts cannot be determined, or it is in the wrongful
               possession of an unknown person or a person that cannot be
               found or is not amenable to service of process.

       (b) A person seeking enforcement of an instrument under Subsection (a) [which
       pertains to a person not in possession of an instrument] must prove the terms of
       the instrument and the person’s right to enforce the instrument. If that proof is
       made, Section 36-3-308 applies to the case as if the person seeking enforcement
       had produced the instrument. The court may not enter judgment in favor of the
       person seeking enforcement unless it finds that the person required to pay the
       instrument is adequately protected against loss that might occur by reason of a
       claim by another person to enforce the instrument. Adequate protection may be
       provided by any reasonable means.

(Emphasis added).

        Based upon the foregoing South Carolina statutes, we have determined that the
dispositive issue is whether Beta proved that it has the right to enforce the lost instrument, that
being Sound Marketing’s note. Therefore, if Beta proved that it has the right to enforce the
lost instrument, then it is entitled to enforce the deed of trust incident thereto. See S.C. Code
Ann. § 36-3-204(a) and (c) and § 36-3-301(i); see also W.C. Early Co., 186 S.W. at 103-04
and Whaley, supra, at 326-27 (holding that the security follows the debt).



       9
         (...continued)
of an instrument is entitled to enforce the instrument if “the person was in possession of the instrument and
entitled to enforce it when loss of possession occurred. . . .” (emphasis added). The words “in possession of
the instrument and” were removed in the 2008 amendment to reject the reasoning in Dennis Joslin Co., LLC
v. Robinson Broad. Corp., 977 F. Supp. 491, 494 (D.D.C. 1997). The South Carolina statute now reads: “if
the person seeking to enforce the instrument was entitled to enforce the instrument when loss of possession
occurred. . . .” S.C. Code Ann. § 36-3-309(a)(1)(A).

                                                   -17-
                         B. T HE R IGHT TO E NFORCE THE L OST N OTE

        Significantly, it is rare for any jurisdiction to permit judicial foreclosure without
production of the promissory note. Borden, 19 N O. 1 W ESTLAW J. B ANK L ENDER L IABILITY
at 1-2 and 7-8. Indeed, production of the original promissory note has been called by one
commentator the “golden rule of foreclosure.” Whaley, supra, at 322. If the original note is
not introduced, a satisfactory reason must be given for failure to do so. Id. at 321-22; William
M. Howard, Ph.D., Annotation, Necessity of Production of Original Note Involved in
Mortgage Foreclosure -- Twenty-First Century Cases, 86 A.L.R. 6TH 411 (2013).

        It is undisputed that Beta does not have possession of the original promissory note;
therefore, to prove that it is the “person entitled to enforce” the promissory note and deed of
trust, Beta has the burden to provide a satisfactory reason for not being able to produce the
original. See W.C. Early Co., 186 S.W. at 103-04; Whaley, supra, at 326-27 (stating that the
note is “the principal thing” and the deed of trust is “incident” to the note).

       There is no evidence in this record concerning how, when, or under what
circumstances the original of any of the promissory notes were lost. The only evidence
concerning the missing notes came through the testimony of Mr. Plylar, which is of little to
no value. All Mr. Plylar could say is that he does not have any of the originals, Beta does not
have them, and he does not know if he or Beta ever had possession of any original note.

       In addition to not having the original promissory note, Mr. Plylar testified that he did
not have an original of any of the documents, including the change in terms agreement and
the Assignment. Mr. Plylar also testified that Beta acquired the note and deed of trust from
Regions Bank pursuant to the May 15, 2003 Assignment of Note and Deed of Trust; however,
Mr. Plylar does not recall whether he received an original note. Therefore, he is unable to
provide any evidence of the loss or destruction of the promissory note.

                               IV. B ETA’S B URDEN OF P ROOF

      The statutory burden of proof placed on Beta to establish the lost note appears in Tenn.
Code Ann. § 24-8-101, which reads:

       Any lost instrument may be supplied by affidavit of any person acquainted with
       the facts, stating the contents thereof, as near as may be, and that such
       instrument has been unintentionally lost or mislaid, and is still the property of
       the person claiming under it, unpaid and unsatisfied.




                                              -18-
The statute states that such proof may be supplied by affidavit but such proof may also be
provided through competent testimony provided in court. See Barr & Company, Inc. v.
Commercial Union Ins. Companies, 1997 WL 656386, at * 3 (Tenn. Ct. App. Oct. 22, 1997)
(citing Pearson v. McCallum, 173 S.W.2d 150, 158 (Tenn. Ct. App. 1941) (“As to the
sufficiency of the evidence, the law requires that the evidence offered to prove by parol the
execution and the contents of a written instrument which is not produced shall be of the most
satisfactory character, or what is known as clear, cogent and convincing evidence.”)).

       As the statute directs, Beta carried the burden to provide competent evidence, meaning
testimony provided by a “person acquainted with the facts,” who can state, inter alia, “that
such instrument has been unintentionally lost or mislaid,” and that the lost instrument “is still
the property of the person claiming under it[.]” Although Beta contends that the note was still
the property of Regions Bank when the note was purportedly assigned to Beta, Mr. Plylar is
not a person “acquainted” with that fact and thus he is not competent to testify as to whether
Regions Bank was the owner of the lost note when it was assigned to Beta. The only evidence
concerning the lost note was provided by Mr. Plylar, but he does not recall ever seeing the
original instrument, he does not know who lost it, and he does not know when it was lost.
Thus, the record is devoid of any evidence regarding the circumstance under which the
purported note was unintentionally lost or mislaid.

        Moreover, the following excerpts from Mr. Plylar’s testimony reveal the little value
of his testimony to the ultimate issue. When asked on direct examination about the execution
of the Change in Terms Agreement executed in 1999 that purportedly extended the maturity
of the note to 2000, he said he recognized the document, but in response to the very next
question, which asked about the origin and history of the document, he replied: “I think that’s
the extension to -- yeah, that’s the loan extension,” but he gave no response regarding the
origin or history of the Change in Terms Agreement. The next question asked him about
“other intervening renewals,” referring to those between the Change in Terms Agreement and
the original 1997 note, to which he stated: “I don’t -- there probably were. I don’t --.” He then
said he did not have copies of any such documents other than those already provided.

        Mr. Plylar’s testimony on cross examination is even more compelling. Mr. Plylar
testified that he was the only person who would have dealt with Regions Bank about the notes
or the assignment of the notes to Beta, but then he stated that he did not recall those events.
When asked if he went to the bank and paid off the loan he stated: “It was -- it would have
been at a closing, a typical closing, so I wouldn’t -- it wouldn’t have even been in a bank. It
would have been in an attorney’s office, most likely, not a bank.” He was then asked if he
recalled whether the bank ever surrendered a Note or a Change in Terms Agreement to him
or endorsed the note over to Beta, him, or anybody else, to which he replied: “I don’t -- I have
-- I have supplied what I have.” The next question to Mr. Plylar, which could be described as

                                              -19-
the $500,000 question, was: “Is it your testimony that that Note wasn’t marked ‘paid in full’?”
He answered that important question: “I do not remember those details.” The next two
questions and Mr. Plylar’s answers were as follows:

       Q.       But you’re not coming here today with a Note that’s endorsed on
                the back paid to the order of Beta, LLC? Well, you don’t have
                the original Note?

       A.       I don’t have the Note.

       Q.       You don’t even have a copy of the Note that’s supposed to have
                been changed by the Change in Terms Agreement?

       A.       I have -- you have what I have.

        For the foregoing reasons, we have determined that the evidence in this record is
woefully inadequate to establish the facts or circumstances identified in Tenn. Code Ann. §
24-8-101.10 Our conclusion is consistent with other cases that are instructive on the issue of
the requisite proof necessary to prove a lost instrument such as a promissory note, including
Buckner v. Geodeker, 45 S.W. 448, 449 (Tenn. Ch. App. 1897). The issue in Buckner was
whether the evidence was sufficient to prove a lost instrument; specifically, whether there was
sufficient evidence regarding its loss and who possessed it at that time. Id. The issue was
based on the code in effect at the time, which stated: “any lost instrument may be supplied by
affidavit of any person acquainted with the facts, stating the contents thereof as near as may
be, and that such instrument has been unintentionally lost or mislaid, and is still the property
of the person claiming under it, unpaid and unsatisfied.” Id. The evidence at issue in Buckner
was provided by affidavit and the court found the affidavit deficient for several reasons.

       In the first place, the word “unintentional” is omitted. It is stated that the notes
       have been misplaced or lost, but there is no statement that they were
       unintentionally lost or misplaced. In the next place, the statute requires that the


        10
           There is other evidence in the record that undermines Beta’s claim that it is entitled to enforce the
deed of trust. Even the trial court found facts pertaining to the assignment of the note and deed of trust
“suspicious” and “somewhat concerning to the court.” For example, the assignment from Regions Bank to
Beta was not on bank stationary; the bank was a South Carolina bank, but the assignment was prepared by
a Williamson County, Tennessee title company; copies of the assignment provided by Mr. Plylar were
different, in one copy the notary acknowledgment was blank, while in the other copy the name and title of
the officer of the bank was written; the 2003 assignment of the note and deed of trust was not recorded until
2008, five years later. Like the trial court, we find some of the facts upon which Beta relies suspicious, but
choose not to pursue that inquiry and rely on the analysis provided in this opinion.

                                                     -20-
        affidavit shall state that the lost instrument is still the property of the person
        claiming under it, unpaid and unsatisfied. This affidavit fails to state this fact.
        The only statement is that Buckner & Co. received from Kate Geodeker these
        notes, and there is no intimation that the notes were still the property of H. B.
        Buckner, who brought the suit thereon, or of Buckner & Co.[.]

Id.11

        S.C. Code Ann. § 36-3-309(a) provides, in pertinent part, that a person not in
possession of an instrument is entitled to enforce the instrument if the person seeking to
enforce the instrument has directly or indirectly acquired ownership of the instrument from
a person who was entitled to enforce the instrument when loss of possession occurred; the loss
of possession was not the result of a transfer by the person or a lawful seizure; and the person
cannot reasonably obtain possession of the instrument because the instrument was destroyed
or its whereabouts cannot be determined. The statute goes on to provide that the person
seeking enforcement of an instrument under Subsection (a) must prove his right to enforce
the instrument. S.C. Code Ann. § 36-3-309(a)(2). Further, the statute provides “if that proof
is made, Section 36-3-308 applies to the case as if the person seeking enforcement had
produced the instrument.” Id.

        Nevertheless, as noted earlier, production of the original promissory note has been
called by one commentator the “golden rule of foreclosure,” Whaley, supra, at 322, and it is
rare for any jurisdiction to permit judicial foreclosure without production of the promissory
note. Borden, 19 N O. 1 W ESTLAW J. B ANK L ENDER L IABILITY at 1-2. Therefore, if the original
note is not introduced, a satisfactory reason must be given for failure to do so. See Id. Beta
has not proved that the purported October 8, 1998 note, which may have extended the
maturity date to 2000, ever existed or that Beta or Regions Bank ever had possession of this
note. Beta has also not proved that anyone had personal knowledge that the note was in
Regions Bank’s files when it disappeared, that it was unintentionally lost or mislaid, that it
was the property of the person claiming under it (Regions Bank) when it was lost, or that it
was unpaid and unsatisfied when lost. See Tenn. Code Ann. § 24-8-101; see also Third Nat.
Bank in Knoxville v. Wilson, 1986 WL 2539, at *1.

        The trial court concluded that the Change in Terms Agreement dated October 8, 1999,
was sufficient to establish the existence, terms, and disposition of the purported October 8,
1998 promissory note, of which there is no original or photocopy. We are unable to agree with
that legal conclusion.


         11
         Reading the quote above makes it readily apparent that the code at issue in Buckner is identical to
 Tenn. Code Ann. § 24-8-101 quoted earlier.

                                                   -21-
         We have determined the trial court erred in finding that the Change in Terms
Agreement dated October 8, 1999, was sufficient to establish the existence, terms, and
disposition of the purported October 8, 1998 promissory note, and we have also determined
that the record does not contain other competent evidence to prove the lost instrument.
Therefore, Beta, as the foreclosing party, failed to carry its burden of proof to establish that
it is entitled to enforce the missing or lost note and, thus, it failed to carry its burden of proof
to establish that it is entitled to enforce the deed of trust incident thereto.

        For the foregoing reasons, we reverse the judgment of the trial court in which it
dismissed Plaintiffs petition to quiet title to their property by releasing the deed of trust and
ruling in favor of Beta on its judicial foreclosure claim.

              V. P LAINTIFFS’ P RAYER FOR R ELEASE OF THE D EED OF T RUST

         Plaintiffs filed this action to quiet title, specifically to obtain the release of the deed of
trust encumbering their property. The trial court denied Plaintiffs’ claim for relief finding that
Beta was entitled to enforce the deed of trust. We have determined Beta failed to establish that
it is the person entitled to enforce the note; accordingly, Beta is not entitled to enforce the
thing that is incident to the note, the deed of trust. See S.C. Code Ann. § 36-3-204(a) and (c)
and § 36-3-301(i); see also W.C. Early Co., 186 S.W. at 103-04 and Whaley, supra, at 326-27
(holding that the security follows the debt).

        For the foregoing reasons, we respectfully reverse the dismissal of Plaintiffs’ claim for
relief and, therefore, Plaintiffs’ complaint to quiet title is reinstated and is remanded to the
trial court for further proceedings consistent with this opinion.

                                         I N C ONCLUSION

       The judgment of the trial court is reversed, and this matter is remanded. Costs of appeal
assessed against the Appellees, Sound Marketing, LLC., and Beta, LLC.




                                                            ______________________________
                                                            FRANK G. CLEMENT, JR., JUDGE




                                                 -22-
