IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

February 19, 2019 Session

DAVID B. STARKEY V. WELLS FARGO BANK, N.A.

Appeal from the Chancery Court for Rutherford County

No. 13CV-26 Howard W. Wilson, Chancellor

No. M2018-00049-COA-R3-CV

After receiving notice of foreclosure proceedings, a homeowner filed suit against the 

bank challenging the bank’s authority to foreclose, demanding verification of the debt, 

and asserting multiple causes of action against the bank. The bank counterclaimed for

slander of title, breach of contract, and declaratory judgment and injunctive relief. In 

response to the bank’s motion for summary judgment, the trial court determined that the 

bank was the holder in due course of the promissory note and the deed of trust and 

granted the bank summary judgment on all claims asserted by the homeowner and on the 

bank’s claims for breach of contract and for declaratory and injunctive relief. The bank 

subsequently moved forward with a foreclosure sale and purchased the homeowner’s 

property. The trial court then held two hearings on damages and awarded the bank a total 

of $194,554.23 in damages, which consists of the balance due on the loan, rent due after 

the foreclosure, and attorney fees and litigation expenses. On appeal, the homeowner 

raises numerous issues regarding the damages awarded to the bank. Finding no merit in 

the issues raised by the homeowner, we affirm the decision of the trial court. 

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

ANDY D. BENNETT, J., delivered the opinion of the Court, in which RICHARD H. DINKINS

and W. NEAL MCBRAYER, JJ., joined.

David B. Starkey, Murfreesboro, Tennessee, pro se.

Jonathan Cole and Brittany Bartley Simpson, Nashville, Tennessee, for the appellee,

Wells Fargo Bank, N.A.-California.

04/23/2019
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OPINION

FACTUAL AND PROCEDURAL BACKGROUND

David Starkey purchased real property on Lascassas Pike in Murfreesboro on June 

7, 2007 for $350,000. To finance the purchase, Mr. Starkey obtained a loan from Wells 

Fargo Bank (“the Bank”) in the amount of $280,000. The indebtedness was evidenced by 

a promissory note (“the Note”) dated June 7, 2007, and was secured by a deed of trust 

recorded with the Rutherford County Register of Deeds on June 11, 2007, that expressly 

states: “THIS IS A PURCHASE MONEY SECURITY INSTRUMENT.” 

Following the execution of the Note and deed of trust, the Bank’s Vice President,

Joan M. Mills, endorsed the Note in blank. The Note and deed of trust were sold and 

negotiated by transfer of possession to Federal Home Loan Mortgage Company 

(“FHLMC”) on August 1, 2007. The Bank remained the servicer of the loan. On June 

25, 2013, FHLMC transferred and negotiated the Note and deed of trust back to the Bank.

Mr. Starkey stopped making payments on the loan in May 2012. On July 16, 

2012, the Bank sent him a default notice informing him that the loan would be 

accelerated if he did not pay the entire delinquency by September 18, 2012. Also on July 

16, 2012, the Bank sent Mr. Starkey a notice informing him that the Bank had the right to 

initiate foreclosure proceedings against him due to his default on the loan. When Mr. 

Starkey failed to bring the loan current, the Bank initiated foreclosure proceedings on the 

property. The Bank sent Mr. Starkey a letter on October 3, 2012, informing him that his 

loan had been referred to a foreclosure attorney and the foreclosure process had begun.

In an apparent effort to stop or interfere with the foreclosure proceedings, Mr. 

Starkey created a cloud on the title to the property by filing numerous documents with the 

Rutherford County Register of Deeds, including several UCC financing statements.1 He 

then filed a complaint and two amended complaints challenging the Bank’s authority to 

foreclose on the property and asking for verification of the debt and a declaratory 

judgment as to the holder in due course of the Note. He further alleged causes of action 

for lack of standing, fraud in the inducement, negligent misrepresentation, fraud in the 

 

1 Mr. Starkey filed the following documents with the Rutherford County Register of Deeds: Notice of 

Lien and UCC Financing Statement, November 1, 2012; Affidavit of Notice of Revocation of Power of 

Attorney and Termination of Attorney in Fact, December 17, 2012; Notice of Qualified Written Request, 

Complaint, Dispute of Debt and Validation of Debt Letter, TILA Request, December 17, 2012; second 

UCC Financing Statement, December 21, 2012; Affidavit of Forgery, December 21, 2012; Notice of 

Dispute, December 21, 2012; UCC Financing Statement Amendment, December 26, 2012; Notice of 

Trustee Obligations, December 26, 2012; three UCC Financing Statement Amendments, December 27, 

2012; Notice of Rescission, January 2, 2013; Abstract of Lien Lis Pendens, January 8, 2013; Notice of 

Acceptance of Warranty Deed Certificate of Acknowledgment and Acceptance, August 23, 2013; 

Affidavit and Declaration, January 3, 2014; and Notice Security Agreement, December 15, 2014.
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conveyance, and unjust enrichment. The Bank filed an answer, counter-complaint, and 

amended counter-complaint alleging various claims including slander of title, breach of 

contract, and a claim for declaratory relief.

On April 14, 2015, Mr. Starkey filed a motion for judgment on the pleadings, 

arguing that, pursuant to the Truth in Lending Act (“TILA”), he rescinded the loan when 

he sent the Bank a notice of rescission on December 31, 2012. The trial court denied Mr. 

Starkey’s motion, finding that he sent the notice of the rescission outside the three-year 

statute of repose provided under TILA and that the loan was a purchase money security 

interest, which is an exempt transaction under TILA.

The Bank filed a motion for summary judgment on January 27, 2016. The trial 

court granted the motion, finding that the Bank was the holder in due course of the Note 

and deed of trust and that it had the right as the loan servicer to collect payments on the 

Note while it was owned by FHLMC. After the trial court granted summary judgment, 

the Bank moved forward with foreclosure proceedings. The foreclosure sale occurred on 

March 1, 2017, and the Bank purchased the property for $308,633.09.2

A hearing to determine the Bank’s damages was scheduled for September 14, 

2017. Three days before the hearing, Mr. Starkey filed a motion to appoint a court 

reporter for the hearing. On the day before the hearing, he filed a motion to vacate the 

memorandum and order granting summary judgment, arguing that the judgment was void 

due to the same TILA rescission argument he made in his motion for judgment on the 

pleadings.

During the damages hearing, Mr. Starkey made an oral motion to continue the 

hearing so a court reporter could be appointed and a motion to dismiss for lack of subject 

matter jurisdiction because the Note had been rescinded and declared void by the United 

States Supreme Court. The trial court denied the motion to vacate, the motion to 

continue, and the motion to dismiss. At the hearing, the Bank called one witness, Phillip 

Cargioli, a Bank loan analyst. During his testimony, the Bank introduced seven exhibits: 

(1) a Rule 1006 damages summary chart; (2) the Note; (3) the deed of trust; (4) bidding 

instructions; (5) the trustee’s deed; (6) a Zillow.com estimate; and (7) the affidavit of 

Bank attorney Jonathan Cole. The court concluded that it needed additional information 

to determine attorney fees, so a second hearing was set for November 29, 2017. 

At the second hearing, the Bank presented the affidavit of Jonathan Cole with 

additional detail to support its claim for attorney fees. The trial court concluded that the 

Bank should be awarded damages in the total amount of $194,554.23, based on “(1) 

$81,578.16 as the balance of the June 7, 2007 loan following foreclosure, (2) $8,925.00 

 

2As of December 2015, Mr. Starkey owed $363,512.38 on the loan.
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in total rent due since foreclosure, (3) attorneys’ fees and litigation expenses of 

$104,051.07.”

ISSUES ON APPEAL

On appeal, Mr. Starkey makes the following challenges to rulings made by the 

trial court during the damages hearings on September 14 and November 29, 2017: 

(1) Whether the trial court erred in admitting into evidence the seven exhibits 

offered by the Bank at the September 14, 2017 hearing.

(2) Whether the trial court erred in admitting into evidence the testimony of the 

Bank’s witness, Phillip Cargioli, at the September 14, 2017 hearing. 

(3) Whether the trial court erred and violated Mr. Starkey’s due process rights 

when it denied his motion to appoint a court reporter and his oral motion for a 

continuance of the September 14, 2017 hearing.

(4) Whether the trial court erred in denying Mr. Starkey’s motions to dismiss for 

lack of subject matter jurisdiction and to vacate a void judgment. 

(5) Whether the trial court erred in granting the Bank damages for rental payments 

pursuant to the deed of trust.

(6) Whether the trial court erred in failing to consider Mr. Starkey’s attempt to 

tender payment.

(7) Whether the trial court erred in denying Mr. Starkey’s request to question the 

Bank’s witness on the issue of the Bank’s status as a holder in due course of the Note.

ANALYSIS

We begin by noting that Mr. Starkey is a pro se litigant, both at trial and on appeal. 

This court applies the following standards when evaluating the claims of pro se litigants:

Parties who decide to represent themselves are entitled to fair and equal 

treatment by the courts. The courts should take into account that many pro 

se litigants have no legal training and little familiarity with the judicial 

system. However, the courts must also be mindful of the boundary between 

fairness to a pro se litigant and unfairness to the pro se litigant’s adversary. 

Thus, the courts must not excuse pro se litigants from complying with the

same substantive and procedural rules that represented parties are expected 

to observe.
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Young v. Barrow, 130 S.W.3d 59, 62-63 (Tenn. Ct. App. 2003) (citations omitted); see 

also Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct App. 2003). We allow pro se 

litigants some latitude in preparing their briefs and endeavor to “give effect to the 

substance, rather than the form or terminology,” of their court filings. Young, 130 S.W.3d 

at 63.

I. Evidentiary Issues.

A. Exhibits.

Mr. Starkey asserts that the trial court erred in admitting exhibits 1 through 7 at the 

September 14, 2017 damages hearing. We will consider each exhibit.

The admissibility of evidence is within the trial court’s sound discretion, and we 

review the trial court’s decision to admit or exclude evidence under an abuse of discretion 

standard. Mercer v. Vanderbilt Univ., Inc., 134 S.W.3d 121, 131 (Tenn. 2004); Otis v. 

Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 442 (Tenn. 1992). Under an abuse of 

discretion standard, this court cannot substitute its judgment for that of the trial court. 

Konvalinka v. Chattanooga-Hamilton Cnty. Hosp. Auth., 249 S.W.3d 346, 358 (Tenn. 

2008). An abuse of discretion will be found only if the trial court “applied incorrect legal 

standards, reached an illogical conclusion, based its decision on a clearly erroneous 

assessment of the evidence, or employ[ed] reasoning that causes an injustice to the 

complaining party.” Id.

(1) Exhibit 1: Rule 1006 Damages Summary (“Damages Summary”).

The Bank’s Damages Summary sets out key information concerning the loan 

between the Bank and Mr. Starkey, including the loan balance, attorney fees, and court 

costs. Mr. Starkey argues that the document was not part of the Bank’s business records, 

was created in anticipation of the hearing, was hearsay, and that he did not have the 

opportunity to review the underlying documents. 

In submitting the summary, the Bank relied upon Tenn. R. Evid. 1006, which 

provides:

The contents of voluminous writings, recordings, or photographs which 

cannot conveniently be examined in court may be presented in the form of a 

chart, summary or calculation. The originals or duplicates shall be made 

available for examination or copying, or both, by other parties at reasonable 

times and places. The court may order that they be produced in court.

Under Tenn. R. Evid. 1006, “[t]he fact that the summary was created in anticipation of 

litigation does not disqualify it so long as the underlying data included in the summary 
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satisfies the business records exception.” Regions Bank, N.A. v. Williams, No. W2013-

00408-COA-R3-CV, 2014 WL 575889, at *4 (Tenn. Ct. App. Feb. 12, 2014). 

Tennessee Rule of Evidence 803(6), which contains the business records 

exception to the hearsay rule, provides, in pertinent part:

A memorandum, report, record, or data compilation, in any form, of acts, 

events, conditions, opinions, or diagnoses made at or near the time by or 

from information transmitted by a person with knowledge and a business 

duty to record or transmit if kept in the course of a regularly conducted 

business activity and if it was the regular practice of that business activity 

to make the memorandum, report, record or data compilation, all as shown 

by the testimony of the custodian or other qualified witness or by 

certification that complies with Rule 902(11) or a statute permitting 

certification, unless the source of information or the method or 

circumstances of preparation indicate lack of trustworthiness.

The business records exception requires documents to satisfy five criteria to qualify for 

introduction:

1. The document must be made at or near the time of the event recorded;

2. The person providing the information in the document must have 

firsthand knowledge of the recorded events or facts;

3. The person providing the information in the document must be under a 

business duty to record or transmit the information;

4. The business involved must have a regular practice of making such 

documents; and 

5. The manner in which the information was provided or the document was 

prepared must not indicate that the document lacks trustworthiness.

Alexander v. Inman, 903 S.W.2d 686, 700 (Tenn. Ct. App. 1995). In the present case, the 

documents upon which the Damages Summary was based are the Note, the deed of trust, 

bidding notes, and the trustee’s deed. Phillip Cargioli, a loan verification consultant for 

the Bank, testified:

BS [Brittany Simpson, attorney for Bank]: . . . Mr. Cargioli, all the 

documents outside of the Wells Fargo or this affidavit and the Zillow 

printout, were they all kept in the regular course of business by Wells 

Fargo?

PC [Phillip Cargioli]: Yes, and the, excluding the Damages Summary as 

well. Yes.

. . . .

BS: And do they [the documents] accurately reflect those records?
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PC: Yes they do.

BS: And were they entered into the business records at or around the time 

those documents were created?

PC: Yes they were. They were input by a person with knowledge who did, 

it was input contemporaneously.

Furthermore, Tenn. R. Evid. 803(6) requires the foundation for the admission of 

business records to be provided by the testimony of “the custodian or other qualified 

witness” or by written certification. The term “qualified witness” is generally interpreted 

broadly. Alexander, 903 S.W.2d at 700. The following principles govern:

The key is that the witness must have knowledge of the method of 

preparing and preserving the business records at issue. The Tennessee 

Supreme Court held that the witness must be able to testify as to the 

identity of the record, the mode of preparation, and whether the record was 

made in the regular course of business at or near the time of the event 

recorded in the business record.

Neil P. Cohen, Sarah Y. Sheppeard & Donald F. Paine, TENNESSEE LAW OF EVIDENCE §

8.11(11)(a) (6th ed. 2012) (footnotes omitted) (citing Fusner v. Coop Constr. Co., LLC, 

211 S.W.3d 686, 693 (Tenn. 2007)). On cross-examination, Mr. Cargioli testified that 

his job responsibilities included reviewing and verifying business records, supplying 

them to counsel, and testifying about them at hearings. He further stated:

Yes I am familiar with how records are created. When I first started, like I 

said, as a Loan Servicing Specialist and Loan Adjuster, part of my job duty 

was to notate files and create the records that exist on files to some degree. 

Although that’s not my job function anymore, I had several hours of 

training and side-by-side training that gave me the experience and the 

know-how in order to testify to these types of matters.

Thus, Mr. Cargioli had the knowledge necessary to testify to the identity and mode of 

preparation of the records and to the fact that they were made in the regular course of the 

Bank’s business.

Finally, Mr. Starkey complains that he did not have the opportunity to examine the 

records underlying the Damages Summary. The transcript of the September 14, 2017 

damages hearing, however, reveals otherwise. Counsel for the Bank stated: “And Your 

Honor, we have all of those documents [used to create Exhibit 1] here today. We’re 

going to be presenting them to the Court. We are happy to let Mr. Starkey take a look at 

them.”

We find no abuse of discretion in the trial court’s decision to admit Exhibit 1.
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(2) Exhibit 2: the Note.

Mr. Starkey’s argument here is that the trial court erred in admitting a photocopy 

of the Note instead of requiring the original Note to be admitted into evidence because he 

challenges the authenticity of the Note. As the Bank points out, Tenn. R. Evid. 1003 

provides: “A duplicate is admissible to the same extent as an original unless a genuine 

question is raised as to the authenticity of the original.” Any genuine issue as to the 

authenticity of the photocopy of the Note was resolved when the trial court ruled upon 

the Bank’s motion for summary judgment. The trial court concluded that Mr. Starkey 

had “shown no evidence that would contradict Defendant’s status as holder of the Note 

and Deed of Trust” and granted the Bank summary judgment on all of Mr. Starkey’s 

claims, including his request for “declaratory judgment as to the holder in due course.” 

Mr. Starkey has failed to show that the trial court abused its discretion in accepting 

a copy of the Note into evidence.

(3) Exhibits 3, 4, 5, and 6: Deed of Trust, Bidding Instructions, Trustee’s Deed, 

and Zillow.com Estimate.

Mr. Starkey makes various arguments that the trial court erred in admitting 

Exhibits 3, 4, 5 and 6. The transcript of the September 14, 2017 damages hearing shows, 

however, that Mr. Starkey failed to object to the introduction of any of these exhibits. 

Pursuant to Tenn. R. App. P. 36(a), this court is not required to grant relief to a party 

“who failed to take whatever action was reasonably available to prevent or nullify the 

harmful effect of an error.” Similarly, Tenn. R. Evid. 103(a) provides, in pertinent part:

Error may not be predicated upon a ruling which admits or excludes 

evidence unless a substantial right of the party is affected, and

(1) Objection. In case the ruling is one admitting evidence, a timely 

objection or motion to strike appears of record, stating the specific ground 

of objection if the specific ground was not apparent from the context;

Thus, “in order to raise an issue on appeal regarding the admissibility of evidence, the 

party raising the issue must have made a contemporaneous objection.” McGarity v. 

Jerrolds, 429 S.W.3d 562, 567 (Tenn. Ct. App. 2013). In the absence of such an 

objection, we generally consider the issue waived. Id. 

We find no abuse of discretion in the trial court’s admission of Exhibits 3, 4, 5, 

and 6, and we also consider the issue waived. 
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(4) Exhibit 7: Affidavit of Jonathan Cole in Support of Bank’s Request for 

Attorney Fees

Mr. Starkey asserts that the trial court erred in admitting the affidavit of Jonathan 

Cole (Exhibit 7) because the Bank did not give him proper notice and time to examine the 

affidavit. At the September 14, 2017 hearing, however, the trial court ruled that the Bank 

needed to submit a more detailed record of the attorneys’ time and that there would need 

to be another hearing in order to give Mr. Starkey a chance to review the information. In 

accordance with this ruling, the Bank filed Mr. Cole’s second affidavit along with a more 

detailed record of the attorneys’ time. Mr. Starkey filed an objection and motion to strike 

Mr. Cole’s second affidavit. At the second damages hearing on November 29, 2017, the 

trial court heard arguments on the Bank’s request for attorney fees and Mr. Starkey’s 

motion to strike. 

Mr. Starkey’s arguments regarding the admissibility of Mr. Cole’s first affidavit 

are moot because, during the first damages hearing, the trial court granted Mr. Starkey’s 

request for additional time and ordered the Bank to provide additional details and 

documentation of the attorneys’ time. At the second damages hearing, the trial court 

conducted a full hearing on Mr. Starkey’s motion to strike Mr. Cole’s second affidavit 

and on the Bank’s request for attorney fees. Thus, contrary to Mr. Starkey’s assertion, he 

had notice and the opportunity to examine the affidavit.

We find no abuse of discretion in the trial court’s decision to admit the affidavit of 

Mr. Cole.

B. Testimony of Phillip Cargioli.

Mr. Starkey argues that the trial court erred in allowing Phillip Cargioli to testify 

as a witness at the September 14, 2017 damages hearing. He asserts that Mr. Cargioli 

was not sworn in as required by Tenn. R. Evid. 603, that the documents to which he 

testified were not originals, and that he “did not meet the conditions required to qualify 

for hearsay exceptions” under Tenn. R. Evid. 803(6).

Although Mr. Starkey failed to obtain a court reporter, the available transcript3

includes the notation “Swearing in inaudible” prior to Mr. Cargioli’s testimony. Thus, 

contrary to Mr. Starkey’s argument, it appears that Mr. Cargioli was sworn in, as required 

by Tenn. R. Evid. 603.4 Mr. Starkey did not make any objection or motion with regard to 

 

3 The transcript in the record was transcribed from recordings made by Mr. Starkey using a personal 

handheld recorder.

4 Rule 603 of the Tennessee Rules of Evidence states: “Before testifying, every witness shall be required 

to declare that the witness will testify truthfully by oath or affirmation, administered in a form calculated 

to awaken the witness’s conscience and impress the witness’s mind with the duty to do so.”
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Mr. Cargioli testifying as a witness at the hearing. As discussed above with respect to 

Exhibits 3 through 6, a party may not object to evidence (or testimony) for the first time 

on appeal. See TENN. R. APP. P. 36(a). Under Tenn. R. Evid. 601, “[e]very person is 

presumed competent to be a witness except as otherwise provided in these rules or by 

statute.” 

We have already discussed the admissibility of the documents to which Mr. 

Cargioli testified. Moreover, the admissibility of these documents is not determinative of 

the admissibility of Mr. Cargioli’s testimony. As to Mr. Starkey’s hearsay argument, he 

fails to point to any specific statements made by Mr. Cargioli that he believes constitute 

hearsay. Without any specific objection, we consider such arguments waived.

We find no abuse of discretion in the trial court’s admission of Mr. Cargioli as a 

witness qualified to testify in support of the Bank’s claim for damages.

II. Court Reporter.

Mr. Starkey argues that the trial court erred and violated his due process rights 

when it denied his motion to appoint a court reporter and his oral motion for a 

continuance of the September 14, 2017 hearing to allow him to retain a court reporter.

 

On September 11, 2017, three days before the first damages hearing (on 

September 14, 2017), Mr. Starkey filed a motion asking the trial court to appoint a court 

reporter for the September 14, 2017 hearing, citing Tenn. Code Ann. § 20-9-101, which 

states:

Upon the trial of any cause or proceeding in any court of record, upon the 

request of either party, the judge of such court shall appoint a competent 

court reporter, who shall first be duly sworn to make a true, impartial and 

complete stenographic report of all the oral testimony given in trial of the 

cause or proceeding, as well as the rulings of the judge.

The courts have construed this provision as establishing a party’s right to have a court 

reporter present at court proceedings. See Warren v. Warren, 731 S.W.2d 908, 909 

(Tenn. Ct. App. 1985). In Warren v. Warren, the court determined that the trial court 

erred in refusing a party’s request to have the court reporter at a conference in chambers. 

Id. The court quoted with approval the following language concerning a similar statute:

In the absence of fault on the part of the litigant who insists on having the 

trial reported, a statute which provides that, upon the request of either party, 

the trial judge shall direct the reporter to take full stenographic notes of the 

proceedings, is mandatory.
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Id. (quoting 75 AM.JUR.2D Trial § 58, p. 171). In another case, the court noted that, 

although the parties typically retain the court reporter, a trial court may use its authority 

under Tenn. Code Ann. § 29-9-101 to appoint a court reporter where there are two 

competing court reporters chosen by the parties. Slaughter v. Slaughter, 922 S.W.2d 115, 

116 n.1 (Tenn. Ct. App. 1995).

In this case, neither party retained a court reporter to attend the September 14, 

2017 damages hearing despite having ample time to do so. When there was no court 

reporter at the hearing, Mr. Starkey moved for a continuance due to the absence of a court 

reporter. The trial court asked him why there was no court reporter present, and Mr. 

Starkey responded that he had filed a motion requesting that a court reporter be appointed 

by the court. The court denied Mr. Starkey’s motion, noting that the case had been set for 

some time and that Mr. Starkey should have had a court reporter present if he wanted one 

there.

In reviewing a trial court’s decision to grant or deny a motion to continue, we 

apply the abuse of discretion standard. Blake v. Plus Mark, Inc., 952 S.W.2d 413, 415 

(Tenn. 1997); In re Lydia N.-S., No. M2016–00964–COA–R3–PT, 2017 WL 420344, at 

*4 (Tenn. Ct. App. Jan. 31, 2017). Mr. Starkey has not established that he was

prejudiced by the trial court’s decision, and we find no abuse of discretion in the trial 

court’s denial of Mr. Starkey’s motion for a continuance.5 

III. Motion to Vacate Judgment/Motion to Dismiss for Lack of Subject Matter 

Jurisdiction.

Mr. Starkey asserts that the trial court erred in denying his motions to dismiss for 

lack of subject matter jurisdiction and to vacate a void judgment. 

A. Motion to Vacate Void Judgment.

On September 13, 2017, Mr. Starkey filed a motion pursuant to Tenn. R. Civ. P. 

60.02(b)(3) asking the trial court to vacate its order of April 4, 2016, granting summary 

judgment to the Bank on its counterclaim for breach of contract. The motion includes the 

notation: “No hearing requested.” In his memorandum in support of this motion, Mr. 

Starkey argued that the trial court “lacked subject matter jurisdiction to make a ruling 

based on void instruments using those void instruments to authenticate and base its 

conclusions and rulings.” It was Mr. Starkey’s position that the Note and the deed of 

 

5

Pursuant to Local Rule 7.03 for Tennessee’s 16th District Chancery and Circuit Courts, when a motion is 

filed and contains language indicating that no oral argument is requested (as is the case with Mr. 

Starkey’s motion requesting a court reporter, filed on September 11, 2017), the court will hold the motion 

for eight judicial days when the motion is served on the opposing party by mail in order to allow for a 

response by the opposing party. Thus, Mr. Starkey’s motion was not filed in time for the court to rule 

upon it before the scheduled hearing on September 14, 2017. 
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trust were void instruments because he sent the Bank a letter on January 2, 2013, to 

rescind the loan.

Despite Mr. Starkey’s failure to request a hearing on the motion to vacate, the 

Bank agreed to argue the motion at the damages hearing on September 14, 2017. The 

Bank argued that the trial court had considered a similar argument—that the loan was 

rescinded by Mr. Starkey—in the context of Mr. Starkey’s earlier motion for judgment on 

the pleadings. The Bank briefly reiterated the same reasoning: that Mr. Starkey sent the 

letter after the three-year statute of repose for a rescission had passed and that, as a 

purchase money security interest loan, the Note fell under an exception to the right of 

rescission in the TILA. See 15 U.S.C. § 1635(e)(1), (f). The trial court overruled the 

motion to vacate.

We review a trial court’s decision on a Rule 60 motion under an abuse of 

discretion standard. Discover Bank v. Morgan, 363 S.W.3d 479, 487 (Tenn. 2012). We 

find no abuse of discretion in the trial court’s decision to deny Mr. Starkey’s motion to 

vacate the trial court’s order granting summary judgment.

B. Motion to Dismiss for Lack of Subject Matter Jurisdiction. 

During the first damages hearing, Mr. Starkey made an oral motion to dismiss “for 

lack of subject matter jurisdiction because I believe the Note and Deed of Trust have 

been rescinded and declared void by the United States Supreme Court.” This motion was 

based upon the same rescission argument discussed above and was denied by the trial 

court for the same reasons. 

Under the circumstances, subject matter jurisdiction presents a question of law, 

which we review de novo with no presumption of correctness. Northland Ins. Co. v. 

State, 33 S.W.3d 727, 729 (Tenn. 2000). We find no error in the trial court’s denial of 

Mr. Starkey’s motion to dismiss.

IV. Rental Payments.

Mr. Starkey maintains that the trial court erred in granting the Bank damages for 

rental payments pursuant to the deed of trust. He takes the position that he could not be 

classified as a tenant of his own property and charged rent for living there. The Bank 

asserts that, under the terms of the deed of trust, when Mr. Starkey failed to vacate the 

property after it was sold to the Bank at the March 1, 2017 foreclosure sale, he became a 

tenant. Section 22 of the deed of trust provides:

If the Property is sold pursuant to this Section 22, Borrower, or any person 

holding possession of the Property through Borrower, shall immediately 

surrender possession of the Property to the purchaser at the sale. If 
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possession is not surrendered, Borrower or such person shall be a tenant at 

will of the purchaser and hereby agrees to pay the purchaser the reasonable 

rental value of the Property after sale. 

In accordance with this provision, the trial court did not err in awarding the Bank 

the rental value of the property during the time period after the sale when Mr. Starkey 

continued to occupy it.

V. Tender of Payment.

Mr. Starkey argues that the trial court erred in failing to consider his attempt to 

tender payment.

According to a copy of a letter dated January 7, 2013, sent by the Bank to Mr. 

Starkey, Mr. Starkey had tendered some type of document that did “not meet the terms of 

your note and mortgage loan that obligates you as the borrower to repay the loan in US 

currency.” In its letter, the Bank stated: “The item you submitted is not legal tender and 

will not be accepted now or in the future as payment on the note or mortgage.” The Note 

itself states that the borrower promises to pay “U.S. $ 280,000.00” plus interest. Thus, 

the obligation is to pay in U.S. currency, and Mr. Starkey did not tender payment in 

accordance with the terms of the Note as contemplated under Tenn. Code Ann. § 47-3-

603, cited by Mr. Starkey. 

We find no error in the trial court’s failure to consider Mr. Starkey’s attempt to 

tender payment on the Note.

VI. Questioning of Witness. 

Finally, Mr. Starkey avers that the trial court erred in denying his request to 

question the Bank’s witness on the issue of the Bank’s status as a holder in due course of 

the Note. The portion of the transcript (during the cross-examination of Mr. Cargioli) at 

issue reads as follows:

DS [David Starkey]: Do you know who the holder [in] due course of this 

contract is?

BS [Brittany Simpson, attorney for the Bank]: Your Honor, we would

object to the Court. He’s already made a ruling on that.

JW [Judge Wilson]: Sustained. I believe . . .

DS: Your honor I again object because holder [in] due course has never 

been addressed by this Court.

JW: All issues regarding holder [in] due course have been decided by the 

Court. We’re just here on the damages hearing. 
- 14 -

In its April 15, 2016 memorandum and order granting partial summary judgment 

in favor of the Bank, the trial court made the following rulings regarding the Bank’s 

status as the holder in due course of the Note and deed of trust: 

Chapter 3 of the Uniform Commercial Code, as adopted in 

Tennessee, maintains that a promissory note may be negotiated either by 

endorsing it to a specific person or entity or by endorsing it in blank. If an

endorsement is made in blank, “an instrument becomes payable to bearer 

and may be negotiated by transfer of possession alone until specially 

endorsed.” Tenn. Code Ann. § 47-3-205(b). When an instrument is 

endorsed in blank, the possessor of the instrument is deemed to be the 

“holder.” Tenn. Code Ann. § 47-1-201(b)(21). The holder of a negotiable 

instrument, such as a promissory note, is the party who is entitled to 

enforce it. Tenn. Code Ann. § 47-3-301. Additionally, “it is well-settled 

Tennessee law that any assignment of a note automatically transfers 

beneficial ownership of the accompanying deed of trust.” Samples v. Bank 

of America, N.A., No. 3:12-CV-44, 2012 WL 1309135, *4 (E.D. Tenn. 

April 16, 2012).

The Record in this matter clearly shows that Plaintiff executed the 

Note and Deed of Trust in favor of Defendant. The Note specifically 

provides that “I understand that the Lender may transfer this Note.” The 

Deed of Trust similarly provides that “the note or a partial interest in the 

Note (along with this Security Instrument) can be sold one or more times 

without prior notice to Borrower.” It is clear to the Court that the Note was

endorsed in blank by Defendant’s Vice President, Joan M. Mills. The Note 

was then sold [and] negotiated by transfer of possession to FHLMC. The 

note was then transferred and negotiated back to Wells Fargo on or around 

June 25, 2013. Upon transfer, the Note carried with it the assignment of the 

Deed of Trust to FHLMC and subsequently to Defendant as a matter of 

law. See Branchant v. Wells Fargo Bank, N.A., No 14-5343, 2015 WL 

3605883 (6th Cir. June 10, 2015). Because Defendant is the current holder 

of the Note, it is entitled to enforce it along with all beneficial interest 

pursuant to Tennessee law. See Tenn. Code Ann. §§ 47-1-201(b)(21) and 

47-3-301 (2011). Plaintiff has shown no evidence that would contradict 

Defendant’s status as holder of the Note and Deed of Trust. Accordingly, 

Defendant is entitled to summary judgment on Plaintiff’s requests for (1) 

declaratory judgment as to the holder in due course, (2) declaratory 

judgment to quiet title to Property, (3) temporary and permanent injunction, 

and causes of action for (4) fraud in the inducement, (5) fraud as to the 

conveyance of the instrument, and (6) negligent misrepresentation.

(Footnote omitted).
- 15 -

In light of the fact that the Bank’s holder in due course status had already been 

adjudicated by the trial court, the court did not abuse its discretion in sustaining the 

Bank’s objection to Mr. Starkey’s questions on the ground of relevancy. 

CONCLUSION

The judgment of the trial court is affirmed, and this matter is remanded with costs 

of appeal assessed against the appellant, David B. Starkey, and execution may issue if 

necessary.

________________________________

 ANDY D. BENNETT, JUDGE