IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs August 1, 2019

SHAUNEILLE SHARIFA (MORTON) v. WELLS FARGO/ASC

Appeal from the Circuit Court for Davidson County

No. 16C1869 Joseph P. Binkley, Jr., Judge

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No. M2018-00178-COA-R3-CV

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This is an appeal from the trial court’s denial of a motion to recuse and award of 

summary judgment. Plaintiff-homeowner took out a loan secured by a deed of trust on a 

parcel of real property. After defaulting on the loan, plaintiff and defendant-bank entered 

into a loan modification agreement. Plaintiff, however, again defaulted on the loan, and, 

after she failed to make the required acceleration payments, defendant initiated 

foreclosure proceedings pursuant to the deed of trust. The real property ultimately was 

sold at foreclosure for less than the balance owed on the loan. Plaintiff then sued 

defendant for breach of contract and wrongful foreclosure. Defendant moved for 

summary judgment. Plaintiff never responded to defendant’s motion for summary 

judgment. Three days prior to the hearing on the summary judgment, plaintiff filed a 

motion for a change of venue, which the trial judge treated as a recusal motion pursuant 

to Tennessee Supreme Court Rule 10B and which, following a hearing, he denied. The 

trial court subsequently granted defendant’s summary judgment motion and dismissed 

plaintiff’s claims with prejudice. Plaintiff appeals both the trial court’s denial of the 

motion to recuse and its granting of the motion for summary judgment. We affirm.

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

Remanded

ARNOLD B. GOLDIN, J., delivered the opinion of the court, in which D. MICHAEL SWINEY,

C.J., and FRANK G. CLEMENT, JR., P.J., M.S., joined.

Shauneille Sharifa (Morton), Madison, Tennessee, Pro se.

Jonathan Cole and Brittany B. Simpson, Nashville, Tennessee, for the appellee, Wells 

Fargo Bank, N A.

10/31/2019
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OPINION

BACKGROUND AND PROCEDURAL HISTORY

On October 18, 2006, Shauneille Sharifa (Morton) (“Plaintiff”) purchased a home 

at 2268 Gilmore Crossing Lane (the “Home”) in Nashville, Tennessee from NVR, Inc. 

To enable her to purchase the Home, Plaintiff took out an adjustable rate loan with New 

Century Mortgage in the amount of $147,225.00 and secured the loan with a deed of trust 

on the Home (collectively, the “Loan”. In 2007, Wells Fargo (“Defendant”) became the 

loan servicer on the Loan.

1

 

In 2010, Plaintiff defaulted on the Loan, and, on December 29, 2010, she entered 

into a Loan Modification Agreement with Defendant, increasing the principal balance on 

the Loan to $188,612.24. In September 2012, Plaintiff defaulted on the Loan for a

second time. Defendant sent Plaintiff an acceleration letter on October 16, 2012, 

notifying her that she was in default and that the Loan would be accelerated if she did not 

make all required payments by December 19, 2012. Plaintiff, however, failed to make 

the required payments, and, as a result, foreclosure proceedings on the Home were 

initiated on February 6, 2013. On June 7, 2016, foreclosure counsel, on behalf of 

Defendant, sent Plaintiff a notice of foreclosure, notifying her that the Home was 

scheduled for sale on July 12, 2016.

2

On July 13, 2016, Plaintiff, proceeding pro se,

3

filed a complaint in the Davidson 

County Circuit Court (the “trial court”), raising three claims: (1) a claim for accounting 

of $55,000; (2) a claim of illegal sale of a home; and (3) a demand that Defendant

“Produce the Note.” Defendant filed its answer on August 10, 2016. Plaintiff, however, 

filed a motion for default judgment against Defendant on November 7, 2016, alleging 

that she did not receive a copy of the answer until October 24, 2016. In its response in 

opposition to the motion, Defendant asserted that it had filed and served its answer within 

the thirty-day time limitation pursuant to Tennessee Rule of Civil Procedure 12.01. After 

a hearing on December 16, 2016, the trial court denied Plaintiff’s motion for default 

judgment, finding that Defendant had filed its answer “within the thirty days prescribed 

 

1 As the loan servicer, Defendant was entitled to, among other things, receive Plaintiff’s payments and 

foreclose on the Home if Plaintiff defaulted on the Loan. 

2 Defendant’s foreclosure counsel received confirmation from the United States Postal Service, verifying 

that the notice was delivered to the current address for Plaintiff.

3 As a pro se litigant, Plaintiff is entitled to fair and equal treatment by the courts. Hessmer v. Hessmer, 

138 S.W.3d 901, 903 (Tenn. Ct. App. 2003). Nevertheless, we must “be mindful of the boundary 

between fairness to a pro se litigant and unfairness to the pro se litigant’s adversary” and not excuse the 

pro se litigant from complying with the same substantive and procedural rules that represented parties 

must observe. Id. 
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by Rule 12.01 of the Tennessee Rules of Civil Procedure and had properly served its 

answer on Plaintiff when it sent the answer by U.S. Mail [to] Plaintiff’s last known 

address.” Additionally, the trial court found that Plaintiff had not been prejudiced by any 

delay that may have occurred. 

On December 22, 2016, Defendant filed a motion for summary judgment. 

Defendant also filed a memorandum in support of the motion, a statement of undisputed 

material facts, and the affidavit of Sarah Lee Stoneholder, Defendant’s vice president of 

Loan Documentation. Defendant asserted that the undisputed facts showed that (1) 

Plaintiff took out the Loan serviced by Defendant, (2) Plaintiff defaulted on the Loan on 

multiple occasions, (3) the Home was sold on July 12, 2016 after Plaintiff received 

proper notice, and (4) there were no excess foreclosure proceeds to be paid to Plaintiff 

because she owed $217,578.23 under the Loan and the Home was sold to a third party 

purchaser for $160,000.00. The trial court set the hearing on the motion for February 17, 

2017. 

On January 13, 2017, Plaintiff moved to postpone the summary judgment hearing 

“so that the Plaintiff will have the opportunity to receive a response to interrogatories as 

well as have a forensic audit completed on the deed in the presence of a Wells Fargo 

representative.” On February 14, 2017, Defendant filed a reply in further support of its 

motion for summary judgment, asserting that Plaintiff failed to file a response to its 

statement of undisputed material facts as required by Tennessee Rules of Civil Procedure 

56.03 and 56.06. Additionally, Defendant emphasized that it had already presented 

evidence that it had legal standing to enforce the Loan and noted that, while it had no 

obligation to do so, it would freely present the note and the deed of trust for inspection by 

Plaintiff and the trial court. On March 8, 2017, the trial court continued the hearing on 

Defendant’s motion for summary judgment, requiring Plaintiff to file any supplemental 

responses before the case management conference, which was scheduled for March 28, 

2017. 

On March 17, 2017, Plaintiff again moved to continue the summary judgment 

hearing until after April 11, 2017, this time so that she could obtain counsel. On April 3, 

2017, the trial court continued the case management conference until April 24, 2017. 

Thereafter, the trial court entered a case management order on May 3, 2017 with the 

following conditions: (1) Plaintiff had until July 1, 2017 to obtain counsel; (2) if Plaintiff 

failed to secure counsel by that date, then all remaining discovery was required to be 

requested by July 12, 2017; and (3) the parties would reconvene on July 14, 2017, at 

which time the trial court would consider resetting Defendant’s motion for summary 

judgment. Plaintiff failed to obtain counsel by July 1, 2017. At the July 14, 2017 

conference, however, the trial court extended the date by which Plaintiff had to request 

discovery until August 1, 2017. Additionally, the trial court set Defendant’s motion for 

summary judgment for September 22, 2017.
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On September 19, 2017, three days before the hearing on Defendant’s motion, 

Plaintiff filed a motion for change of venue, alleging—for the first time—that, on 

December 16, 2016, Defendant’s counsel, Brittany Simpson, and Judge Joe Binkley, Jr. 

engaged in impermissible ex parte communications that prevented Plaintiff from 

receiving a fair hearing on her motion for default judgment. Additionally, Plaintiff 

requested that Judge Binkley be disqualified or recuse himself from the underlying 

matter. A hearing was held on September 22, 2017, and, on October 9, 2017, the trial 

court, treating Plaintiff’s motion as a Tennessee Supreme Court Rule 10B motion to 

recuse, denied the motion, finding that she had failed to provide any legal grounds for 

Judge Binkley’s disqualification and that she had not filed the motion in a timely manner. 

Thereafter, on October 18, 2017, the trial court ordered Plaintiff to retain an expert or to 

submit testimony in opposition to Defendant’s motion for summary judgment by 

November 3, 2017.

4

 Plaintiff, however, did neither.

After a hearing on November 9, 2017, the trial court granted Defendant’s motion 

for summary judgment, dismissing Plaintiff’s complaint with prejudice. The trial court 

held that the facts presented in Defendant’s statement of undisputed material facts were 

supported by the evidence. Additionally, it noted that, despite having ample time to do 

so, Plaintiff failed to file a response to Defendant’s statement of undisputed material facts 

under Tennessee Rule of Civil Procedure 56.03. As such, based on the undisputed facts, 

the trial court found that Plaintiff waived her right to presentment under Tennessee Code 

Annotated section 47-3-501 when she executed the note; further, it found that Plaintiff’s 

claims for excess proceeds from the foreclosure sale and all other claims raised in her 

complaint failed as a matter of law based on the undisputed facts. Before the trial court 

entered its order,5however, Plaintiff filed an “Appeal of Decision to Grant Summary 

Judgment” with the trial court on November 13, 2017. Treating the filing as a motion to 

alter or amend under Tennessee Rule of Civil Procedure 59.04, the trial court, on January 

23, 2018, denied the motion, finding that it presented no change in controlling law, no 

new evidence, and no other reason that the judgment should be amended. The trial court 

further found that Plaintiff presented no reason or justification for failing to respond to 

Defendant’s statement of undisputed material facts, despite having ample opportunities to 

do so. On January 29, 2018, Plaintiff timely filed her notice of appeal with this Court.

6

 

For the next fourteen months, Plaintiff filed multiple statements of the evidence that 

failed to comply with the Tennessee Rules of Appellate Procedure as well as various 

other motions, attempting—among other things—to reopen discovery. Ultimately, on 

 

4 The trial court emphasized “that Plaintiff will have no additional extension of time to hire and offer an 

expert in this matter.”

5 The trial court did not enter its order granting Defendant’s motion for summary judgment until 

November 27, 2018.

6

Plaintiff’s notice of appeal is an exact reproduction of the “Appeal of Decision to Grant Summary 

Judgment” that she filed in the trial court on November 13, 2017.
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April 17, 2019, the trial court entered three separate orders, adopting a statement of the 

evidence and denying Plaintiff’s outstanding motions.

ISSUES PRESENTED

As we perceive it, Plaintiff raises two issues for our review, which we restate as 

follows:

1. Whether the trial court erred in denying Plaintiff’s motion to recuse.

2. Whether the trial court erred in granting Defendant’s motion for summary 

judgment.

DISCUSSION

A. Motion to Recuse

We first address Plaintiff’s contention that the trial court erred in denying her 

motion to recuse, which she filed with the trial court on September 19, 2017.7 In her 

motion, Plaintiff alleged the following: that, on the morning of December 16, 2016,8

before the hearing on her motion for default which she had filed on November 7, 2016, 

Ms. Simpson and her co-counsel of record, Jonathan Cole, appeared in court on behalf of 

the Defendant; that the court officer summoned Ms. Simpson into Judge Binkley’s 

chambers; and that, approximately fifteen minutes later, Ms. Simpson returned to the 

courtroom, gathered her belongings, and left. According to Plaintiff, Mr. Cole remained 

in the courtroom and represented Defendant during the hearing. Plaintiff contends that 

the trial court denied her November 7, 2016 motion for default due to ex parte 

communications between Ms. Simpson and Judge Binkley in the latter’s chambers. 

Concerning the standard of review applicable to Rule 10B petitions, this Court has 

explained the following:

The 2012 adoption of Tennessee Supreme Court Rule 10B requires 

appellate courts to review a trial court’s ruling on a motion for recusal 

under a de novo standard of review with no presumption of correctness. 

Tenn. Sup. Ct. R. 10B, § 2.01. The party seeking recusal bears the burden 

of proof, and any alleged bias must arise from extrajudicial sources and not 

from events or observations during litigation of a case.

 

7 While Plaintiff did not seek interlocutory appeal of the trial court’s decision, we nevertheless have 

jurisdiction to consider this issue. See Tenn. Sup. Ct. R. 10B § 2.01 (“The trial court’s ruling either can 

be appealed in an accelerated interlocutory appeal as of right . . . or the ruling can be raised as an issue in 

an appeal as of right following the entry of the trial court’s judgment.”) (emphasis added) (internal 

citations omitted).

8

Plaintiff’s motion for default was set to be heard at 9:00 a.m. on December 16, 2016.
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Childress v. United Parcel Serv., Inc., No. W2016-00688-COA-T10B-CV, 2016 WL

3226316, at *2 (Tenn. Ct. App. June 3, 2016) (internal quotations omitted). Additionally, 

when reviewing a Tennessee Supreme Court Rule 10B appeal, the only order this Court 

may review is the trial court’s order denying the motion to recuse. Duke v. Duke, 398 

S.W.3d 665, 668 (Tenn. Ct. App. 2012). In denying Plaintiff’s motion to recuse, the trial 

court found that Plaintiff did not follow the proper procedures or satisfy the requirements 

of Tennessee Supreme Court Rule 10B. We agree.

Tennessee Supreme Court Rule 10B section 1.01 provides the following in 

relevant part: 

Any party seeking . . . recusal . . . of a judge . . . shall do so by a timely 

filed written motion. The motion shall be supported by an affidavit under 

oath or a declaration under penalty of perjury on personal knowledge and 

by other appropriate materials. The motion shall state, with specificity, all 

factual and legal grounds supporting disqualification of the judge and shall 

affirmatively state that it is not being presented for any improper purpose, 

such as to harass or to cause unnecessary delay or needless increase in the 

cost of litigation. 

Tenn. Sup. Ct. R. 10B § 1.01. While Plaintiff did not file her motion to recuse until nine 

months after the alleged events detailed in the motion, this Court often considers the 

merits of a recusal issue despite allegations of untimeliness. See Bean v. Bailey, 280 

S.W.3d 798, 803 (Tenn. 2009) (considering the substantive merit of a recusal issue 

despite a “considerable passage of time between the assignment of the case to [the trial 

court] and the formal filing of the motion for recusal”); Boren v. Hill Boren, PC, 557 

S.W.3d 542, 548 (Tenn. Ct. App. 2017) (considering the substantive merit of a recusal 

issue in Rule 10B appeal despite “Petitioner’s failure to seek recusal in a timely 

manner”). Therefore, we will proceed to address Plaintiff’s recusal issue on the merits of 

the case despite the allegation of untimeliness. Nevertheless, we conclude that the trial 

court properly denied Plaintiff’s motion to recuse. 

The record reflects that, at 9:00 a.m. on December 16, 2016, the same time and 

date during which Plaintiff’s motion for default was heard, Ms. Simpson was in Maury 

County, Tennessee for an unrelated hearing and thus could not have met with Judge 

Binkley in Davidson County, as Plaintiff alleged. The record contains the affidavits of 

two attorneys who stated that they personally witnessed and spoke to Ms. Simpson during 

the 9:00 a.m. hearing in the Circuit Court of Maury County, Tennessee on December 16, 

2016. The record also reflects that, during the September 22, 2017 hearing on Plaintiff’s 

motion to recuse, Judge Binkley’s court officer testified that he did not call Ms. Simpson 

into Judge Binkley’s chambers on the morning of December 16, 2016. Moreover, the 

trial court, in its order denying the motion to recuse, “vehemently denied Ms. Simpson’s 

presence in its chambers on December 16, 2016 or at any other time for any purpose 
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whatsoever.”9 Accordingly, in addition to finding that there is substantial factual 

evidence to support the decision of the trial court, we conclude that Plaintiff failed to 

prove any “legal grounds supporting disqualification of the judge” and affirm the trial 

court’s denial of Plaintiff’s motion to recuse. 

B. Summary Judgment

We next address Plaintiff’s argument that the trial court erred in granting 

Defendant’s motion for summary judgment. “Summary judgment is appropriate when 

‘the pleadings, depositions, answers to interrogatories, and admissions on file, together 

with the affidavits, if any, show that there is no genuine issue as to any material fact and 

that the moving party is entitled to a judgment as a matter of law.’” Rye v. Women’s 

Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015) (quoting Tenn. R. 

Civ. P. 56.04). “We review a trial court’s ruling on a motion for summary judgment de 

novo, without a presumption of correctness.” Id. “In doing so, we make a fresh 

determination of whether the requirements of Rule 56 of the Tennessee Rules of Civil 

Procedure have been satisfied.” Id. Here, the trial court noted that Plaintiff, despite 

having “more than ample time to file a response” to Defendant’s statement of undisputed 

material facts, “chose not to do so.” Accordingly, the trial court adopted Defendant’s 

statement of undisputed facts and concluded that “Plaintiff’s claims for excess proceeds 

from the foreclosure sale, wrongful foreclosure, ‘produce the note,’ and all other claims 

alleged in Plaintiff’s Complaint fail as a matter of law.” After our review of the record as 

well as the relevant case law, we agree.

The record before us contains no response filed by Plaintiff in opposition to 

Defendant’s motion for summary judgment. Tennessee Rule of Civil Procedure 56.03 

governing summary judgment motions and responses in opposition to such motions 

provides the following: 

 

9 Additionally, the trial court noted that, during the hearing on Plaintiff’s motion to recuse, Ms. Simpson 

testified that she had attended the hearing in Maury County, Tennessee on the morning of December 16, 

2016. The trial court also noted that Ms. Simpson presented an affidavit to that effect, which also 

reflected her attorney time for that date. While the record on appeal does not contain Ms. Simpson’s 

affidavit or a transcript of the September 22, 2017 hearing, the trial court summarized both in its order:

The attorney time entry and [Ms. Simpson’s] testimony reflected that she left her 

office at approximately 7:40 a.m. on December 16, 2016 to attend the hearing in 

Columbia, Maury County, Tennessee, after which she returned to her office at 

approximately 10:33 a.m. She went on to state that, while she has been involved in this 

litigation since its inception, today, September 22, 2017, is the first time she has ever met 

the Plaintiff face to face or has been in the same room as the Plaintiff. She emphatically 

denies attending any hearings in this case until today, September 22, 2017, and 

emphatically denies being present in the Fifth Circuit Court on Friday, December 16, 

2016, for any reason.
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In order to assist the Court in ascertaining whether there are any 

material facts in dispute, any motion for summary judgment made pursuant 

to Rule 56 of the Tennessee Rules of Civil Procedure shall be accompanied 

by a separate concise statement of the material facts as to which the moving 

party contends there is no genuine issue for trial. Each fact shall be set 

forth in a separate, numbered paragraph. Each fact shall be supported by a 

specific citation to the record.

Any party opposing the motion for summary judgment must, not 

later than five days before the hearing, serve and file a response to each 

fact set forth by the movant either (i) agreeing that the fact is undisputed, 

(ii) agreeing that the fact is undisputed for purposes of ruling on the motion 

for summary judgment only, or (iii) demonstrating that the fact is disputed.

Each disputed fact must be supported by specific citation to the record.

Such response shall be filed with the papers in opposition to the motion for 

summary judgment.

Tenn. R. Civ. P. 56.03 (emphases added). Accordingly, Rule 56.03 requires that a party 

opposing a motion for summary judgment must serve and file a response to the motion. 

Courts consistently have emphasized that a party opposing a motion for summary 

judgment may not simply rest on its pleadings, but must affirmatively oppose the 

motion. See, e.g., Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 

2000); McCarley v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998). 

Moreover, this Court has held that the failure to do so often proves “fatal” to the nonmoving party at the trial court and on appeal:

Although the trial court may, at its discretion, waive the requirements of the 

rule where appropriate, the court may also refuse to consider the factual 

contentions of a non-complying party even where such facts are 

ascertainable by the record. Thus the material facts set forth in the 

statement of the moving party may be deemed admitted in the absence of a 

statement controverting them by the opposing party. Accordingly, failure 

to file a response in opposition to a motion for summary judgment 

generally will prove fatal in the trial court and upon appeal.

Holland v. City of Memphis, 125 S.W.3d 425, 428 (Tenn. Ct. App. 2003) (internal 

citations omitted). Here, Plaintiff’s complaint raised three claims: (1) a claim for 

accounting of $55,000; (2) a claim of illegal sale of a home; and (3) a demand that 

Defendant “Produce the Note.” Deeming the statement of undisputed material facts as 

admitted, however, we agree with the ruling of the trial court that Defendant proved that 

there is no genuine issue as to any material fact and, accordingly, that it is entitled to a 

judgment as a matter of law. 
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We interpret Plaintiff’s first claim as one for breach of contract based on 

Defendant’s alleged failure to pay excess proceeds from the foreclosure sale to Plaintiff, 

and we interpret Plaintiff’s second claim as a claim for wrongful foreclosure.10 

Defendant’s statement of undisputed material facts provides the following: to enable her 

to purchase the Home, Plaintiff took out the Loan in the amount of $147,225.00, using 

the Home as collateral; Defendant was the loan servicer of the Loan; after Plaintiff 

defaulted on the Loan in 2010, she and Defendant entered into a loan modification 

agreement, whereby the principal balance on the Loan increased to $188,612.24; in 

September 2012, Plaintiff defaulted on the Loan for a second time; on October 16, 2012, 

Defendant notified Plaintiff that she was in default and that the Loan would be 

accelerated if she did not make all the required payments by December 12, 2012; 

Plaintiff, however, failed to do so, and foreclosure on the Home was initiated on February 

6, 2013; on June 3, 2016, Defendant notified Plaintiff that the total amount due on the 

Loan was $217,578.23, and, on June 7, 2016, Defendant sent Plaintiff a notice of 

foreclosure; on July 12, 2016, the Home was sold at foreclosure to LRW Holdings, LLC 

as the highest and best bid offered for $160,000.00; because Plaintiff still owed 

$217,578.23 on the Loan at the time of the foreclosure sale, there were no excess 

proceeds from the sale. Accordingly, Plaintiff’s first two claims are factually 

unsupported; Plaintiff received notice of the foreclosure sale and there were no excess 

proceeds from the foreclosure sale. As to Plaintiff’s third and final claim that Defendant 

“[p]roduce the [n]ote,” we conclude that Plaintiff waived her right to presentment11 when 

she executed the note. Tennessee law requires that “[u]pon the request of the person to 

whom presentment is made, the person making presentment must exhibit the 

instrument.” Tenn. Code Ann. § 47–3–501(b)(2). However, the exhibition of the 

instrument is excused where “by the terms of the instrument presentment is not necessary 

to enforce the obligation of endorsers or the drawer” or “the drawer or endorsee whose 

obligation is being enforced has waived presentment or otherwise has no reason to expect 

or right to require that the instrument be paid or accepted.” Tenn. Code Ann. § 47–3–

504(a)(iii)-(iv). Here, the wording of the note included the following: “I and any other 

person who has obligations under this Note waive the rights of Presentment and notice of 

dishonor.” (emphasis added). Accordingly, Plaintiff waived her right of presentment 

 

10 As to the first claim, Plaintiff’s complaint asserts the following: “[Defendant] sold [the Home] on July 

12, 2016 for $105,000.00, the amount still owed on [the Home] however, [the Home] sold for 

$160,000.00. This claim is against [Defendant] for the $55,000.00 difference of the sale.” As to the 

second: “[Defendant] illegally sold [the Home]. [Defendant] never informed me in writing or over the 

phone of a sale date or that [the Home] was posted for sale.” 

11 Tennessee Code Annotated section 47-3-501 defined presentment as “a demand made by or on behalf 

of a person entitled to enforce an instrument (i) to pay the instrument made to the drawee or a party 

obliged to pay the instrument or, in the case of a note or accepted draft payable at a bank, to the bank, or 

(ii) to accept a draft made to the drawee.” Tenn. Code Ann. § 47-3-501(a).
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when she executed the note, and the trial court properly dismissed this claim as a matter 

of law.

CONCLUSION

For the foregoing reasons, the trial court’s denial of the motion to recuse and it’s 

granting of summary judgment is affirmed.

_________________________________

ARNOLD B. GOLDIN, JUDGE