IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

September 8, 2022 Session

IN RE ESTATE OF JOHN JEFFERSON WALLER

Appeal from the Probate Court for Davidson County

No. 16P-1690 David Randall Kennedy, Judge

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No. M2022-00183-COA-R3-CV

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A reverse mortgage borrower died. The administrator of his estate petitioned the probate 

court to enjoin the lender from foreclosing and to set aside the loan and mortgage based on 

lack of capacity and fraud. While the injunction against the lender was in place, the 

mortgaged property was sold. On the administrator’s motion, the probate court ordered 

the administrator to escrow the payoff amount for the reverse mortgage pending the 

outcome of the litigation. After a bench trial, the probate court dismissed the estate’s

claims against the lender. The administrator then asked the court for leave to release the 

escrowed funds in an amount equal to a payoff provided by the lender shortly before the 

sale. The lender objected because the sale had occurred over four years before. The lender 

requested payment of interest accruing since the sale and recovery of its attorney’s fees 

and costs. The probate court sided with the administrator and denied the lender’s motion 

for attorney’s fees and costs. We affirm. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Probate Court Affirmed

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which ANDY D. BENNETT

and JEFFREY USMAN, JJ., joined.

Paulson Varghese and Robert T. Lieber Jr., Brentwood, Tennessee, for the appellant, 

Reverse Mortgage Funding, LLC.

Peggy D. Mathes, Nashville, Tennessee, for the appellee, Public Administrator of the 

Estate of John Jefferson Waller, Jr.

11/02/2022
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OPINION

I.

In the months before his death in 2016, ninety-six-year-old John Jefferson Waller, 

Jr. was blind, bedridden, and non-verbal. Due to his many infirmities, he required 

assistance with all activities of daily living. But despite this, Mr. Waller wanted to live out 

the rest of his life in his Nashville home. 

Purportedly to carry out his wishes, Annie Waller Burns, a relative who held a power 

of attorney to act on Mr. Waller’s behalf, filled out a loan application for him with Reverse 

Mortgage Funding, LLC. Several weeks after Ms. Burns filled out the loan application, 

Mr. Waller was admitted to a nursing home due to his declining health. On September 7, 

2016, a representative from Reverse Mortgage met with Mr. Waller in the nursing home 

and presented him with documents to sign. Mr. Waller signed both an adjustable rate note 

and a deed of trust for his home with an “X.”

The note entitled Reverse Mortgage to demand immediate repayment if Mr. 

Waller’s home was sold, it ceased to be his residence, or Mr. Waller died. The note further 

provided that “[Mr. Waller] promises to pay to the order of [Reverse Mortgage] a principal 

amount equal to the sum of all Loan Advances made under the Loan Agreement with 

interest.”1 Interest accrued at the rate of 4.809% per year. 

The following week, Reverse Mortgage deposited a $48,501 advance into 

Mr. Waller’s bank account. The same day, Mr. Waller was transferred to a hospital; he 

died twelve days later. 

In January 2017, the administrator of Mr. Waller’s estate filed a petition with the 

probate court to set aside the note and deed of trust. The administrator also requested a 

temporary restraining order prohibiting Reverse Mortgage from foreclosing on the Waller 

home. Among other things, the administrator claimed that Ms. Burns and Reverse 

Mortgage conspired to induce Mr. Waller to obtain the reverse mortgage, even though he 

lacked contractual capacity, and that they had engaged in fraud and violated the Tennessee 

Adult Protection Act. See Tenn. Code Ann. § 71-6-120 (2019). And Ms. Burns allegedly 

misappropriated the loan proceeds to her own use just before and after Mr. Waller’s death. 

Shortly after filing the petition and obtaining the restraining order, the administrator 

put the Waller home up for auction. The administrator asked the probate court to approve 

the contract of sale with the winning bidder for $132,500. And she asked to delay paying 

off the loan to Reverse Mortgage pending the outcome of the litigation. The motion to 

 

1 As the name of the lender suggests, the loan was a “home equity conversion mortgage loan.” See

Tenn. Code Ann. § 47-30-102(8) (2013). The loan was nonrecourse as to Mr. Waller. 
3

delay payment specified that the payoff amount through the end of February 2017 was 

$51,700.73. The court approved the sale and ordered the administrator to hold “adequate 

funds necessary to pay off the reverse mortgage . . . in the estate account pending further 

orders of [the court].” 

On the petition to set aside, the administrator obtained an agreed judgment against 

Ms. Burns, the attorney-in-fact, for funds she removed from Mr. Waller’s bank account. 

The claims against Reverse Mortgage ultimately came on for trial in August of 2020 and 

January of 2021. The court found that the administrator failed to prove that Mr. Waller 

lacked capacity to contract or that Reverse Mortgage engaged in any wrongful activity. So 

the court dismissed all claims against Reverse Mortgage with prejudice.

A.

Following the dismissal, Reverse Mortgage moved for turnover of funds sufficient 

to pay off its loan. It claimed that the unpaid balance of its loan as of March 31, 2021, was 

$78,118.02. Reverse Mortgage also filed a motion for attorney’s fees and costs. It sought 

an award of $37,549.50 in attorney’s fees and costs incurred “in filing and prosecuting its 

claims to enforce its interest in the [Waller home] as a result of the default under the Loan 

made subject to [the litigation].” 

The court granted the motion for turnover, but only allowed the payment of 

$51,700.73, which the court described as “the amount of the payoff [for] which payment 

was held in abeyance pending completion of the litigation.” The amount would be deemed 

“full payment for Reverse Mortgage’s interest in th[e] Estate.” Although it noted that the 

amount authorized represented a payoff from February 2017, the court reasoned that the 

delay in concluding the litigation was not the fault of either party. And it concluded that 

the instruments were “silent as to any mandatory obligation that interest . . . be paid.” The 

court also found that Reverse Mortgage failed to make a claim with the estate within the 

time required by law. 

The court denied the request for attorney’s fees and costs. It concluded that the 

instruments were also silent as to any mandatory obligation to pay attorney’s fees. And, 

similar to the claim for interest, Reverse Mortgage failed to make a timely claim with the 

estate for recovery of attorney’s fees.

Reverse Mortgage moved to alter or amend. See TENN. R. CIV. P. 59.04. It argued 

that the court had committed an error of law by misreading the loan documents, which 

provided for interest accrual on the unpaid balance. Reverse Mortgage also argued that the 

court could make it an award of “prejudgment interest” as a matter of equity. 

The court denied the motion to alter or amend. The court “f[ound] no contractual 

basis for paying Reverse Mortgage interest in any amount not contained in the $51,700.73 
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previously ordered.” And it found “no basis, in the interest of equity or otherwise, to award 

pre-judgment interest.”

B.

The administrator made her own request for fees, both on her own behalf and as 

legal counsel. She requested fees totaling $43,726.50. The request included fees 

associated with administration of the estate generally as well as fees for her litigation 

against Reverse Mortgage and Ms. Burns. The court granted the administrator’s fee 

request. 

II.

On appeal, Reverse Mortgage raises three issues for review. The first two issues 

relate to the denial of its claim for interest on the loan accruing after the sale of the Waller 

home. The final issue challenges the court’s award of fees to the administrator. 

A.

Reverse Mortgage first argues it is entitled to interest based on its contract with 

Mr. Waller. Construction of a contract is a matter of law, which we review de novo. 

Barnes v. Barnes, 193 S.W.3d 495, 498 (Tenn. 2006). When interpreting a contract, we 

look to give effect to the intent of the contracting parties and interpret the contract language

according to its plain meaning. Allstate Ins. Co. v. Watson, 195 S.W.3d 609, 611 (Tenn. 

2006). The probate court erred when it found that the “instruments [were] silent as to any 

mandatory obligation that interest . . . be paid.” 

We conclude that the note expressly provided for the payment of “a principal 

amount equal to the sum of all Loan Advances made under the Loan Agreement with 

interest.” Similarly, the deed of trust provided for payment when due of “the principal of, 

and interest on, the debt evidenced by the Note.” So we agree with Reverse Mortgage’s 

interpretation of its documents. 

But the court also found that Reverse Mortgage “failed to make a claim for payment 

of interest . . . within the time required by law.” By statute, “[a]ll claims against [an] estate 

arising from a debt of the decedent shall be barred unless filed within the period prescribed 

in the notice published or posted [by the probate court clerk].” Tenn. Code Ann. § 30-2-

307(a)(1) (2021). The deadline for filing is “the end of twelve (12) months from the date 

of death of the decedent.” Id. § 30-2-310(a) (2021). Reverse Mortgage concedes it never 

filed a claim with the estate. So Reverse Mortgage’s contractual claim for interest was 

barred by the failure to make a timely claim.
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For its second issue, Reverse Mortgage argues that there was alternative basis for 

awarding interest. It claims entitlement to prejudgment interest as a matter of equity. Our 

“courts have always had the power to award prejudgment interest as an element of 

damages.” Scholz v. S.B. Int’l, Inc., 40 S.W.3d 78, 81 (Tenn. Ct. App. 2000); Tenn. Code 

Ann. § 47-14-123 (2013). An award of prejudgment interest “is within the sound discretion 

of the trial court.” In exercising its discretion, “the court must decide whether the award 

of prejudgment interest is fair, given the particular circumstances of the case.” Myint v. 

Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn. 1998). 

Under the circumstances of this case, we find no abuse of discretion in denying 

prejudgment interest. Allowance of prejudgment interest would, in effect, partially excuse 

Reverse Mortgage’s failure to file a timely claim against the estate. 

B.

In its final issue, Reverse Mortgages argues that the probate court erred in awarding 

attorney’s fees to the administrator and her counsel2 because the administrator was not a 

prevailing party and her actions did not benefit the estate. Administrators “are entitled to

. . . payment from the estate for reasonable expenses incurred in good faith for the exclusive 

and necessary benefit of the estate.” In re Estate of Wallace, 829 S.W.2d 696, 700-01 

(Tenn. Ct. App. 1992); Tenn. Code Ann. § 30-2-606 (2021). What expenses are reasonable 

is determined “in light of all the relevant circumstances” including, the nature and 

adequacy of the services rendered, and the value of the benefits conferred on the estate. In 

re Estate of Wallace, 829 S.W.2d at 701; see also Carmack v. Fidelity-Bankers Trust Co., 

177 S.W.2d 351, 355 (Tenn. 1944). 

Attorney’s fees incurred to benefit or protect the estate are the type of expenses for 

which repayment is appropriate. Leaver v. McBride, 506 S.W.2d 141, 145 (Tenn. 1974). 

“Deciding whether a party’s attorney’s fees should be paid by the estate does not 

necessarily hinge on the success of the party’s claims.” In re Estate of Greenamyre, 219 

S.W.3d 877, 886 (Tenn. Ct. App. 2005). Instead, “[t]he controlling question is whether the 

entire estate benefitted from the efforts of the party’s lawyer.” Id. We will not alter a 

court’s decision regarding attorney’s fees absent an abuse of discretion. Id. at 885; In re 

Estate of Wallace, 829 S.W.2d at 701.

We find no abuse of discretion in the award of fees to the administrator or her 

counsel. The administrator’s actions benefitted the estate. While she did not succeed on 

her claims against Reverse Mortgage, she obtained a judgment against Ms. Burns in favor 

of the estate. And the administrator sold the Waller home for an amount in excess of the 

 

2 Based on the motion for fees, it appears that, in addition to representing herself, one other attorney 

may have provided legal services to the administrator. 
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mortgage. She also successfully opposed Reverse Mortgage’s claims for interest accruing 

after the sale of the home and for attorney’s fees and costs. 

III.

The probate court properly denied Reverse Mortgage’s request for recovery of 

additional interest on its loan based on its failure to file a timely claim against the estate. 

And the court did not abuse its discretion in awarding fees to the administrator or her 

counsel. So we affirm.

 s/ W. Neal McBrayer 

W. NEAL MCBRAYER, JUDGE