IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

August 19, 2021 Session

WILMINGTON SAVINGS FUND SOCIETY, FSB ET AL. v. THOMAS S. 

JACKSON

Appeal from the Chancery Court for Sevier County

No. 20-10-188 Telford E. Forgety, Jr., Chancellor

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No. E2021-00300-COA-R3-CV

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This appeal arises from an action for default on a promissory note. Wilmington Savings 

Fund Society, FSB, as certificate trustee on behalf of Bosco Credit II Trust Series 2010-1 

(“Plaintiff”), filed suit against Thomas S. Jackson (“Defendant”) in the Chancery Court for 

Sevier County (the “trial court”), alleging causes of action for breach of contract and unjust 

enrichment arising from a note executed in 2006. Defendant moved the trial court for 

summary judgment, alleging that he defaulted on the note in 2007 and that the property 

was foreclosed in 2008. Defendant averred that Plaintiff’s cause of action accrued when 

Defendant’s remaining debt was accelerated in 2008 and that Plaintiff’s cause of action 

was therefore time-barred by Tennessee’s six-year statute of limitations on breach of 

contract actions. Plaintiff responded to Defendant’s motion but failed to cite to any facts 

in the record that created a dispute as to Defendant’s statements and failed to produce any 

countervailing evidence. Accordingly, the trial court granted Defendant’s motion and 

Plaintiff filed a timely appeal to this Court. Discerning no error, we affirm.

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

KRISTI M. DAVIS,J., delivered the opinion of the Court, in which JOHN W. MCCLARTY and

THOMAS R. FRIERSON, II, JJ., joined.

Robert T. Lieber, Jr., Brentwood, Tennessee, for the appellant, Wilmington Savings Fund 

Society, FSB, in its capacity as Certificate Trustee of Bosco Credit II Trust Series 2010-1. 

Scott Hall, Sevierville, Tennessee, for the appellee, Thomas S. Jackson.

OPINION 

09/30/2021
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BACKGROUND 

Defendant executed a promissory note (the “Note”) for $45,900.00 on or about 

August 23, 2006 in favor of Homecomings Financial Network, Inc. (“Homecomings”). 

Attached to the Note is an allonge with a blank endorsement, and Plaintiff purports to be 

the current holder of the Note. The Note provides that Defendant’s “obligations are 

separately secured by a Mortgage/Deed of Trust dated the same date as this note.” The 

Note further provides that “unpaid principal, earned interest and all other agreed charges” 

may be made immediately due should Defendant default on the loan. It is undisputed that 

Defendant did not make timely payments on the Note and defaulted some time in 2007. 

Plaintiff filed an action against Defendant in the trial court on October 14, 2020, 

alleging causes of action for breach of contract and unjust enrichment. Plaintiff averred

that notices of default had been mailed to Defendant on June 5, 2019 and October 7, 2019. 

While a copy of the Note was attached to the complaint, the record does not contain copies 

of the notices of default allegedly mailed to Defendant in 2019. 

Defendant responded by filing a motion for summary judgment on November 30, 

2020, arguing that Plaintiff’s claims were time-barred. Defendant averred that he had 

received a notice of default and acceleration in 2008 and that the subject property was 

foreclosed soon thereafter. Defendant’s statement of undisputed material facts provided, 

inter alia, as follows: 

2. Default on the Note occurred in 2007. 

3. [Defendant] received numerous notices from purported holders of 

the Note which advised [Defendant] that he was in default on the 

Note. 

4. The original Notice of Default on the Note was sent to [Defendant]

in or about year 2008. 

5. The original lender sent [Defendant] a notice of default and notice 

of acceleration in or about year 2008. 

* * *

9. [The property] was foreclosed upon in year 2008. 

10. [The property] was conveyed via foreclosure in 2008 to a third 

party. 

In support of his statement of undisputed material facts and motion, Defendant attached his 
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own affidavit explaining that he defaulted on the Note in 2007, received a notice of 

acceleration in 2008, and that the Property was foreclosed later that year. Defendant also 

attached to his statement of undisputed facts a substitute trustee’s deed reflecting that in 

February 2008, Homecomings foreclosed the Property and it was sold to Deutsche Bank 

Trust Company Americas as Trustee after public auction. The substitute trustee’s deed 

reflects that the foreclosure was associated with a deed of trust executed by Defendant on 

August 23, 2006. 

Plaintiff responded to Defendant’s motion and statement of undisputed material 

facts on December 17, 2020. In response to Defendant’s averment that he received notice 

of acceleration in 2008, Plaintiff stated only: “Disputed. The Note was not accelerated until 

the filing of this instant action.” However, Plaintiff did not cite to the record nor did it 

provide any additional evidence. Rather, in response to all of Defendant’s undisputed 

material facts, Plaintiff simply stated “disputed” or “admitted” without citation to the 

record. Plaintiff also filed a written response to the motion for summary judgment, urging 

that the Note is an installment note and that Plaintiff’s action was therefore timely. Plaintiff 

argued that while claims as to some of the missed payments on the Note may be barred by 

the six-year statute of limitations, the statute had not yet run with regard to all missed 

payments. Additionally, Plaintiff stated that the Note was not accelerated “prior to the 

initiation of the instant action” and explained that Plaintiff sent notices of default to 

Defendant in June and October 2019. Again, however, Plaintiff cited nothing in the record 

to support these contentions, nor did Plaintiff attach any affidavits or exhibits to its 

response. Plaintiff also alleged for the first time that the 2008 foreclosure “was for the first 

mortgage, not the second[,]” explaining that “[t]he Substitute Trustee’s Deed attached to 

the Motion [for summary judgment] references a deed of trust recorded at Book 2604, Page 

132. The Deed of Trust that secured the Note was recorded at Book 2604, Page 154. [See 

Attached Exhibit 1].” Nonetheless, there were no attached exhibits to Plaintiff’s response, 

and the only deed in the record is the substitute trustee’s deed produced by Defendant. 

Finally, Plaintiff also noted that Defendant failed to state specifically which statutes of 

limitation he was relying on. 

The trial court granted Defendant’s motion on January 8, 2021.1 As pertinent, the 

trial court found: 

The original lender, Homecomings Financial Network, Inc., provided 

the Defendant, Thomas [S.] Jackson, with notice of default and notice of 

acceleration in or about year 2008, as evidenced by the verified Affidavit of 

Thomas Jackson of Record. Plaintiff did not or could not refute the year 2008 

acceleration of the debt. 

 

1 There is no transcript of the hearing in the record. 
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The Record reflects that the Statute of Limitations has run on any of 

the Plaintiff’s claims.

Plaintiff fails to demonstrate that acceleration did not occur in the year 

2008, as sworn to by Defendant Thomas S. Jackson. 

Essentially, the trial court concluded that Defendant was entitled to summary 

judgment because Plaintiff failed to dispute the evidence offered with Defendant’s motion. 

Accordingly, Plaintiff’s case was dismissed in its entirety. Plaintiff filed a motion to alter 

or amend the trial court’s order on January 29, 2021, arguing the same installment theory 

raised in its response to Defendant’s motion for summary judgment. Plaintiff also urged 

that Defendant’s affidavit was an insufficient basis upon which to grant summary 

judgment, and that Defendant had not established the elements of his statute of limitations 

defense because Defendant failed to specify which statutes of limitation upon which he

relied. Defendant responded to Plaintiff’s motion and urged that the trial court properly 

granted summary judgment inasmuch as Plaintiff failed to dispute any of Defendant’s 

material facts, and clarified that Defendant was relying upon Tennessee Code Annotated 

section 28-3-109(a) and (c) for his statute of limitations defense.2

The trial court denied Plaintiff’s motion to alter or amend on March 25, 2021. In 

its order, the trial court clarified that “the Statute of Limitations has run on any of the 

Plaintiff’s claims, both the six (6) and ten (10) year limitation periods.” The trial court also 

reiterated that “Plaintiff has failed to demonstrate that acceleration did not occur in the year 

2008, as sworn by Defendant Thomas S. Jackson.” Plaintiff then filed a timely notice of 

appeal to this Court. 

ISSUES

We rephrase Plaintiff’s issues on appeal as follows: 

 

2 Tennessee Code Annotated section 28-3-109 provides:

(a) The following actions shall be commenced within six (6) years after the cause of action 

accrued:

(1) Actions for the use and occupation of land and for rent;

(2) Actions against the sureties of guardians, executors and administrators, sheriffs, 

clerks, and other public officers, for nonfeasance, misfeasance, and malfeasance 

in office; and

(3) Actions on contracts not otherwise expressly provided for.

(b) The cause of action on title insurance policies, guaranteeing title to real estate, shall 

accrue on the date the loss or damage insured or guaranteed against is sustained.

(c) The cause of action on demand notes shall be commenced within ten (10) years after 

the cause of action accrued.
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1. Whether the trial court erred in concluding that Defendant offered sufficient 

evidence to show that acceleration of Defendant’s debt occurred in 2008.

2. Whether the trial court properly concluded that Plaintiff’s claims were timebarred. 

STANDARD OF REVIEW 

A trial court may grant summary judgment only if the “pleadings, depositions, 

answers to interrogatories, and admissions on file, together with the affidavits . . . 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 propriety of a trial court’s 

summary judgment decision presents a question of law, which we review de novo with no 

presumption of correctness. Kershaw v. Levy, 583 S.W.3d 544, 547 (Tenn. 2019).

“The moving party has the ultimate burden of persuading the court that there are no 

genuine issues of material fact and that the moving party is entitled to judgment as a matter 

of law.” Martin v. Norfolk S. Ry., 271 S.W.3d 76, 83 (Tenn. 2008). As our Supreme Court 

has instructed,

when the moving party does not bear the burden of proof at trial, the moving 

party may satisfy its burden of production either (1) by affirmatively negating 

an essential element of the nonmoving party’s claim or (2) by demonstrating 

that the nonmoving party’s evidence at the summary judgment stage is 

insufficient to establish the nonmoving party’s claim or defense. 

Rye v. Women’s Care Ctr. of Memphis, 477 S.W.3d 235, 264 (Tenn. 2015) (emphasis in 

original). “[I]f the moving party bears the burden of proof on the challenged claim at trial, 

that party must produce at the summary judgment stage evidence that, if uncontroverted at 

trial, would entitle it to a directed verdict.” TWB Architects, Inc. v. Braxton, LLC, 578 

S.W.3d 879, 888 (Tenn. 2019) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 331 (1986)). 

When a party files and properly supports a motion for summary judgment as 

provided in Rule 56, “to survive summary judgment, the nonmoving party may not rest 

upon the mere allegations or denials of its pleading, but must respond, and by affidavits or 

one of the other means provided in Tennessee Rule 56, set forth specific facts . . . showing 

that there is a genuine issue for trial.” Rye, 477 S.W.3d at 265 (internal quotation marks 

and brackets in original omitted). “Whether the nonmoving party is a plaintiff or a 

defendant—and whether or not the nonmoving party bears the burden of proof at trial on 

the challenged claim or defense—at the summary judgment stage, ‘[t]he nonmoving party 

must demonstrate the existence of specific facts in the record which could lead a rational 

trier of fact to find in favor of the nonmoving party.’” TWB Architects, 578 S.W.3d at 889 
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(quoting Rye, 477 S.W.3d at 265).

In reviewing the trial court’s summary judgment decision, we accept the evidence 

presented by the nonmoving party as true; allow all reasonable inferences in its favor; and 

“resolve any doubts about the existence of a genuine issue of material fact in favor of” 

Plaintiff, the party opposing summary judgment. Id. at 887. 

DISCUSSION 

The dispositive issue here is whether the trial court properly concluded that the 

undisputed facts show the Note was accelerated in 2008. As Plaintiff states in its brief, 

“[i]f the Note was not accelerated in 2008 then [Plaintiff] is permitted to pursue claims for 

each missed payment within the applicable statute of limitations.” Conversely, if the trial 

court correctly concluded that the Note was accelerated in 2008, then Plaintiff’s cause of 

action accrued at that time and is time-barred. See Tenn. Code Ann. § 28-3-109(a); 

Deutsche Bank v. Nat’l Trust Co. v. Lee, No. M2018-01479-COA-R3-CV, 2019 WL

2482423, at *4–5 (Tenn. Ct. App. June 13, 2019) (explaining that default on a note 

“amounts to a breach” and that a cause of action for future installments accrues when the 

“creditor chooses to take advantage of” an acceleration clause); see also SunTrust Bank v. 

Ritter, No. E2017-01045-COA-R3-CV, 2018 WL 674000, at *5 (Tenn. Ct. App. Feb. 1, 

2018) (looking to date of acceleration to determine whether breach of contract action on 

note was brought within limitations period). 

Although the trial court concluded that Defendant properly supported his motion for 

summary judgment with his affidavit and the substitute trustee’s deed, thereby requiring 

Plaintiff to “demonstrate the existence of specific facts in the record which could lead a 

rational trier of fact to find in favor of [Plaintiff,]” Plaintiff disputes this on appeal. TWB 

Architects, 578 S.W.3d at 889. Plaintiff maintains that Defendant’s affidavit was 

insufficient because it contains only legal conclusions “masked” as factual assertions, and 

that Plaintiff’s burden to respond was therefore not triggered. See Progressive Specialty 

Ins. Co. v. Kim, No. M2019-01998-COA-R3-CV, 2021 WL 1086884, at *2 (Tenn. Ct. App. 

Mar. 22, 2021) (“If the moving party fails to show he or she is entitled to summary 

judgment, ‘the non-movant’s burden to produce either supporting affidavits or discovery 

materials is not triggered and the motion for summary judgment fails.’” (quoting Martin,

271 S.W.3d at 83)).

In particular, Plaintiff takes issue with Defendant’s statement that default and 

acceleration occurred in 2008, inasmuch as Plaintiff contends that whether acceleration 

occurred is a fact-sensitive inquiry best undertaken by the court. Plaintiff urges that 

Defendant’s failure to produce a copy of a notice of acceleration from 2008 is fatal to 

Defendant’s position, and avers that “the actual language of the document must be 

evaluated in order to determine the effect, if any, on the note.” Plaintiff also contends that 
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the substitute trustee’s deed filed in conjunction with Defendant’s motion pertains to a 

superior mortgage unrelated to the Note. 

In support, Plaintiff relies almost entirely on non-binding authority from other 

jurisdictions. For example, Plaintiff posits that Kryder v. Rogers, No. 1:13-cv-00048, 2015 

WL 1345544 (M.D. Tenn. Mar. 23, 2015), is dispositive here. In that case, the plaintiff 

brought several claims against the defendants arising from the execution of a promissory 

note, one of which was improper acceleration. Id. at *1. The plaintiff sought partial 

summary judgment on some of her claims, alleging in part that defendants improperly 

“accelerated the principal balance on the term note” thereby breaching its terms. Id. at *2. 

The letter from defendants’ counsel upon which plaintiff based this assertion read: 

The purpose of this letter is to advise you of our representation and 

notify you that the May 19, 2012, agreement with my client to “pause” 

payments is no longer in effect. We therefore request that either the principal 

sums be paid immediately, or, if you lack sufficient funding for that option, 

that the notes be made current and you come within compliance of their terms 

on or before October 1, 2012.

Id. at *7. Accordingly, the district court held that the letter was merely a “request” 

and did not amount to acceleration of the note.

Plaintiff posits that Kryder and other cases cited in its brief stand for the proposition 

that courts have definitively held “a review of the contents of the notice of acceleration [is]

imperative in determining the effect of the letter[,]” and that Defendant’s affidavit should 

be disregarded. Defendant, on the other hand, argues on appeal that the trial court properly 

granted summary judgment in Defendant’s favor because “Plaintiff did not offer a sworn 

denial of the fact that the Note was accelerated [in 2008,]” nor did Plaintiff produce 

countervailing evidence for the trial court’s consideration. Defendant points out that 

pursuant to Tenn. R. Civ. P. 56.03, “[e]ach disputed fact must be supported by citation to 

the record.” Because Plaintiff failed to dispute Defendant’s assertion that acceleration 

occurred in 2008, Defendant argues that the trial court properly treated this fact as 

undisputed and, in turn, properly concluded that Plaintiff’s cause of action accrued in 2008 

and is untimely. 

We agree with Defendant. When moving for summary judgment, “[s]upporting and 

opposing affidavits shall be made on personal knowledge, shall set forth such facts as 

would be admissible in evidence, and shall show affirmatively that the affiant is competent 

to testify to the matters stated therein.” Tenn. R. Civ. P. 56.06; see also Synovus Bank v. 

Paczko, No. M2014-00897-COA-R3-CV, 2015 WL 3455965, at *4 (Tenn. Ct. App. May 

29, 2015) (“Evidence, including the substance of affidavits, filed in ‘support or to oppose 

a motion for summary judgment must be admissible.’” (quoting Shipley v. Williams, 350 
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S.W.3d 527, 535 (Tenn. 2011)). “An abuse of discretion standard applies to decisions 

regarding the admissibility of evidence filed in support of or in opposition to motions for 

summary judgment.” Id. In the present case, Defendant’s affidavit provided that he was 

competent to testify and had personal knowledge of the matters discussed therein. 

Defendant further stated that he received, in the mail, a notice of default and acceleration 

from the lender in 2008. While Plaintiff attempts to couch Defendant’s affidavit as 

containing a legal opinion as to whether acceleration was properly, legally effectuated, this 

is a mischaracterization. The affidavit merely provides that Defendant received a particular

notice in the mail. Moreover, although Plaintiff correctly points out that affidavits 

containing conclusory statements are generally insufficient for purposes of summary 

judgment, Plaintiff ignores the fact that Defendant also produced a substitute trustee’s deed 

to corroborate his statements that the debt was accelerated and the property foreclosed in 

2008. Consequently, while Defendant’s testimony is self-serving, it is also supported by 

other documentation contained in the record. See Huggins v. McKee, 500 S.W.3d 360, 371 

(Tenn. Ct. App. 2016). 

Accordingly, we take no issue with the trial court’s conclusion that Defendant 

submitted a properly supported motion for summary judgment. Moreover, we are not 

persuaded that the cases cited by Plaintiff, such as Kryder, go so far as to hold that an 

affiant may not swear in an affidavit that he or she received a notice of default and 

acceleration in the mail.3 The trial court took no issue with the substance of Defendant’s 

affidavit, and Plaintiff does not explain in its brief why this amounts to an abuse of 

discretion. We are therefore not inclined to disturb the trial court’s decision that 

Defendant’s affidavit was sufficient under the circumstances. See Garner v. Coffee Cnty. 

Bank, No. M2014-01956-COA-R3-CV, 2015 WL 6445601, at *14 (Tenn. Ct. App. Oct. 

23, 2015) (“[A]n appellate court is not permitted to interfere with the trial court’s 

discretionary decision absent a showing that the trial court abused its discretion.”). 

Likewise, we reject Plaintiff’s contention that it was excused from compliance with 

Tenn. R. Civ. P. 56.03. “When a party makes a properly supported motion for summary 

judgment, ‘the burden shifts to the nonmoving party to establish the existence of disputed 

material facts or that the moving party is not entitled to judgment as a matter of law.’” 

Ritter, 2018 WL 674000, at *5 (quoting Holland v. City of Memphis, 125 S.W.3d 425, 427

(Tenn. Ct. App. 2003)). Rule 56.03 itself mandates that once “a motion for summary 

judgment is made and supported as provided in this rule, an adverse party may not rest 

upon the mere allegations or denials of the adverse party’s pleading[.]” Id. Rather, the 

adverse party “must set forth specific facts showing that there is a genuine issue for trial.” 

 

3 Plaintiff cites a footnote in a federal case from Texas which provides that “[a] party’s assertion 

that acceleration occurred is a legal conclusion that should not be considered competent summary judgment 

evidence.” Tafacory v. Deutsche Bank Nat’l Trust Co., No. 4:19-CV-00886-SDJ-CAN, 2020 WL 7658070, 

at *5 n.5 (E.D. Tex. Nov. 6, 2020). Nonetheless, under the particular circumstances of this case, we cannot 

conclude that a footnote from non-binding legal authority is the dispositive factor in our analysis. 
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Id. (emphasis added). This may be accomplished “by pointing to evidence in the record 

which indicates disputed material facts.” Ritter, 2018 WL 674000, at *5. 

Nonetheless, Plaintiff’s response to Defendant’s statement of undisputed material 

facts and motion for summary judgment contained only assertions of Plaintiff’s counsel, 

with no citation to evidence in the record or additional, countervailing evidence. Indeed, 

Plaintiff’s response to Defendant’s statement that he received a notice of default and 

acceleration in 2008 was simply: “Disputed. The Note was not accelerated until the filing 

of this instant action.” However, nothing in the record buttresses Plaintiff’s response. In 

the same vein, Plaintiff’s response to the substitute trustee’s deed offered by Defendant is 

an unsupported assertion that the deed addresses a different debt.4 Plaintiff wholly failed 

to comply with Tenn. R. Civ. P. 56.03, and although “[a] trial court, acting within its 

discretion, may waive the requirements of [Rule] 56.03 under certain circumstances[,]”

such a waiver did not occur in the present case. Deutsche Bank, 2019 WL 2482423, at *3 

(quoting Cox v. Tenn. Farmers Mut. Ins. Co., 297 S.W.3d 237, 244 (Tenn. Ct. App. 2009)). 

Rather, the trial court held Plaintiff to its obligations under the rule and, again, Plaintiff has 

not explained in its brief how this amounts to an abuse of discretion. Consequently, we 

deem it prudent to leave the trial court’s decision in this case undisturbed. See Garner, 

2015 WL 6445601, at *14. 

While Rule 56.03 provides that an adverse party “may not rest upon mere 

allegations or denials” in response to a motion for summary judgment, that is precisely how 

Plaintiff proceeded here. Accordingly, Plaintiff failed to “set forth specific facts showing 

that there is a genuine issue for trial.” Tenn. R. Civ. P. 56.06. Insofar as Plaintiff failed to 

dispute that acceleration of Defendant’s debt occurred in 2008, we agree with the trial 

court’s conclusion that Plaintiff’s cause of action accrued in 2008. Consequently, we also 

agree with the trial court’s conclusion that Plaintiff’s claims for breach of contract and 

unjust enrichment5are untimely pursuant to Tennessee Code Annotated section 28-3-109. 

 

4 Plaintiff’s response to the motion for summary judgment provides: 

The foreclosure of the property was for the first mortgage, not the second. The 

Substitute Trustee’s Deed attached to the Motion references a deed of trust recorded at 

Book 2604, Page 132. [See Exhibit C to Motion]. The Deed of Trust that secured the Note 

was recorded at Book 2604, Page 154. [See Attached Exhibit 1]. 

There were no exhibits attached to Plaintiff’s response. As such, Plaintiff’s contention that the 

2008 foreclosure was unrelated to the Note is an unsupported allegation by Plaintiff’s counsel. Moreover, 

the substitute trustee’s deed references a deed of trust executed by Defendant the same day as the Note. 

5

In determining the applicable statute of limitations, we look to the “‘gravamen of the 

complaint.’” Benz-Elliott v. Barrett Enters., LP, 456 S.W.3d 140, 147 (Tenn. 2015) (quoting Whaley v.

Perkins, 197 S.W.3d 665, 670 (Tenn. 2006)); see also Metro. Gov’t of Nashville and Davidson Cnty. v. 

Cigna Healthcare of Tennessee, Inc., 195 S.W.3d 28, 32 (Tenn. Ct. App. 2005) (“Unjust enrichment is a
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The trial court therefore did not err in granting summary judgment to Defendant.

CONCLUSION 

The judgment of the Chancery Court for Sevier County is hereby affirmed. Costs 

of this appeal are assessed to the appellant, Wilmington Savings Fund Society, FSB, for 

which execution may issue if necessary. 

_________________________________

KRISTI M. DAVIS, JUDGE

 

quasi-contractual theory or an equitable substitute for a contract claim[.]”).