Mark Ross v. Orion Financial Group, Inc. ( 2019 )


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  •                                                                                        03/07/2019
    IN THE COURT OF APPEALS OF TENNESSEE
    AT NASHVILLE
    January 10, 2019 Session
    MARK ROSS ET AL. v. ORION FINANCIAL GROUP, INC. ET AL.
    Appeal from the Chancery Court for Williamson County
    No. 39132 Joseph Woodruff, Judge
    ___________________________________
    No. M2018-00991-COA-R3-CV
    ___________________________________
    This appeal involves the assignment of a deed of trust and subsequent foreclosure.
    Appellants purchased a home and later defaulted on the mortgage. Appellees foreclosed
    on the property, and Appellants filed suit to set aside the foreclosure. Appellees argued
    numerous theories, which were all dismissed by the trial court on grant of summary
    judgment. Appellants appeal. We affirm.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
    Affirmed and Remanded
    KENNY ARMSTRONG, J., delivered the opinion of the court, in which RICHARD H.
    DINKINS and W. NEAL MCBRAYER, JJ., joined.
    P. Robert Philp, Jr., Nashville, Tennessee, for the appellants, Mark Ross, and Estate of
    Deborah Ross.
    Richard C. Keller and J. Matthew Kroplin, Nashville, Tennessee, for the appellees, Orion
    Financial Group, Inc., CitiMortgage, Inc., CitiFinancial Mortgage Company, Inc.,
    Verdugo Trustee Service Corporation, Mortgage Electronic Registration Systems, Inc.,
    Merscorp Holdings, Inc., First American Title Company, TransContinental Title
    Company, Athens Title Company, and J Phillip Jones.
    Robert J. Notestine, III, Nashville, Tennessee, for the appellees, Bill Lazarus and Dan
    Heichelbech.
    OPINION
    I. Background
    On December 22, 2003, Mark Ross and Deborah Ross purchased property located
    at 1747 Cayce Spring Road in Thompson Station, Tennessee (the “Property”).
    Concurrent with their purchase, the Rosses executed a promissory note (the “Original
    Note”) in favor of The Lending Group, Inc. in the principal amount of $403,798.00. The
    Original Note was secured by a deed of trust recorded on January 12, 2004. In April
    2004, The Lending Group assigned the Original Note to CitiFinancial Mortgage
    Company, Inc. Orion Financial Group, Inc. (“Orion”) executed the assignment as
    attorney-in-fact for The Lending Group. CitiMortgage, Inc. (“CMI) is CitiFinancial
    Mortgage Company, Inc.’s successor in interest by merger.
    Approximately one year later, in May 2005, the Rosses obtained a home equity
    line of credit (“HELOC”) from Citizens Bank in the amount of $125,000.00. The Rosses
    executed a promissory note (the “Citizens Note”) and a deed of trust (the “Citizens
    Deed”) to secure the HELOC. The Citizens Deed was recorded in Williamson County on
    June 9, 2006. Thereafter, Citizens Bank assigned the Citizens Deed to Mortgage
    Electronic Registration Systems, Inc. (“MERS”). HSBC Mortgage Services of Elmhurst,
    Illinois (“HSBC”) prepared the assignment.
    On October 25, 2006, the Rosses refinanced their Original Note and the HELOC
    with CMI. The new promissory note (the “CMI Note”), in the amount of $575,000.00,
    was dated October 25, 2006. The accompanying deed of trust (the “CMI Deed”) was
    recorded on November 2, 2006. The Trustee under the CMI Deed was First American
    Title Company. The CMI Deed describes MERS as follows: “‘MERS’ is a Mortgage
    Electronic Registration Systems, Inc. MERS is a separate corporation that is acting
    solely as a nominee for Lender and Lender’s successors and assigns. MERS is the
    beneficiary under this Security Instrument.” The Transfer of Rights in the Property
    section of the CMI Deed provides, “The beneficiary of this Security Instrument is MERS
    (solely as nominee for Lender and Lender’s successors and assigns) and the successors
    and assigns of MERS.” Each of the prior deeds of trust was subsequently released.
    On November 9, 2006, MERS executed a Trust Deed Release, which was
    recorded on November 27, 2006. On December 4, 2006, CMI executed a Trust Deed
    Release of The Lending Group, Inc. indebtedness, i.e., the Original Note. The Trust
    Deed Release was recorded on December 11, 2006. This Trust Deed Release was
    prepared by Verdugo Trustee Service Corporation, a Gaithersburg, Maryland mortgage
    service corporation (“Verdugo”).
    The Rosses concede that they defaulted on the CMI Note in early 2010. Despite
    notice and time to cure, the Rosses did not do so, and CMI initiated foreclosure on the
    Property. On September 29, 2010, CMI executed a Substitution of Trustee, under which
    J. Phillip Jones, Esq. was substituted as Trustee under the CMI Deed. The Substitution of
    Trustee was recorded on November 8, 2010. MERS executed a Corporate Assignment of
    Deed of Trust, whereby the CMI Deed was transferred to CMI. The Corporate
    -2-
    Assignment of Deed of Trust was accomplished on September 30, 2010 and recorded on
    November 10, 2010. The Substitute Trustee on the CMI Deed advertised the foreclosure
    sale on October 15, 22, and 29, 1010. The Property was sold at foreclosure on November
    8, 2010 to Bill Lazarus and Dan Heichelbech.
    On November 8, 2010, the Rosses filed a Verified Petition for Injunction seeking
    to prevent foreclosure on the Property. As noted above, the Property was sold on the
    same day that the Rosses filed for injunction. On November 11, 2010, the trial court
    entered an order denying the Rosses’ petition on the ground that the petition failed to
    comply with Tennessee Code Annotated section 29-23-201, which requires an injunction
    request on a foreclosure to be served on the mortgage holder at least five days before the
    sale.
    The Rosses were granted leave to file an amended complaint on March 4, 2013.
    The amended complaint added several defendants. On May 1, 2015, the Rosses filed a
    Second Amended Complaint against Orion, CMI, Verdugo, MERS, First American Title
    Company, Transcontinental Title Company, Athens Title, Bill Lazarus, Dan Heichelbech,
    and J. Phillip Jones (together, “Appellees”). The Rosses asserted the following claims:
    (1) quiet title; (2) declaratory relief; (3) fraudulent conveyance; (4) slander of title; (5)
    breach of fiduciary duties (as to all Trustees and title companies); (6) conversion; (7)
    fraud and misrepresentation; (8) breach of contract; (9) promissory estoppel; (10)
    negligence; (11) unfair and deceptive trade practices in violation of the Tennessee
    Consumer Protection Act (“TCPA”); (12) unjust enrichment; and (15) injunctive relief.
    Several Appellees filed motions to dismiss the second amended complaint. The trial
    court denied the motions.
    On February 19, 2017, Deborah Ross died. On July 6, 2017, the trial court entered
    an order substituting Mr. Ross as Personal Representative of the Estate of Deborah Ross.
    On October 23, 2017, Mr. Ross filed a motion for summary judgment. On December 7,
    2017, Appellees filed a cross-motion for summary judgment. Prior to the hearing on the
    motions for summary judgment, the trial court granted Appellees’ motion to withdraw
    admissions by order of February 6, 2018, discussed infra. By order of April 27, 2018, the
    trial court denied Mr. Ross’s motion for summary judgment and granted Appellees’
    motion for summary judgment. Specifically, the trial court “dismissed” the complaint
    and directed entry of final judgment pursuant to Tennessee Rule of Civil Procedure
    54.02(1). Appellants appeal.
    II. Issues
    There are three dispositive issues, which we state as follows:
    1. Whether the trial court erred in granting summary judgment in favor of Appellees as
    to all of Mr. Ross’s causes of action.
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    2. If so, whether the trial court erred in denying Mr. Ross’s motion for summary
    judgment.
    3. Whether the trial court abused its discretion in granting Appellees’ motion to
    withdraw admissions.
    III. Standard of Review
    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
    judgment as a matter of law.” 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. Rye v.
    Women’s Care Center of Memphis, MPLLC, 
    477 S.W.3d 235
    , 250 (Tenn. 2015). 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. 
    Rye, 477 S.W.3d at 250
    (citation omitted). The reviewing court must consider the evidence in the light most
    favorable to the non-moving party and must resolve all reasonable inferences in the non-
    moving party’s favor. Akridge v. Fathom, Inc., No. E2014-00711-COA-R9-CV, 
    2015 WL 97946
    , at *4 (Tenn. Ct. App. Jan. 7, 2015) (citing B & B Enter. of Wilson Cnty.,
    LLC v. City of Lebanon, 
    318 S.W.3d 839
    , 844-45 (Tenn. 2010)) (internal citations
    omitted).
    Tennessee law provides:
    In motions for summary judgment in any civil action in Tennessee, the
    moving party who does not bear the burden of proof at trial shall prevail on
    its motion for summary judgment if it:
    (1) Submits affirmative evidence that negates an essential element of the
    nonmoving party’s claim; or
    (2) Demonstrates to the court that the nonmoving party’s evidence is
    insufficient to establish an essential element of the nonmoving party’s
    claim.
    Tenn. Code Ann. § 20-16-101. However, “a moving party seeking summary judgment
    by attacking the nonmoving party’s evidence must do more than make a conclusory
    assertion that summary judgment is appropriate on this basis.” 
    Rye, 477 S.W.3d at 264
    .
    Rule 56.03 requires the moving party to support its motion with “a separate concise
    statement of the material facts as to which the moving party contends there is no genuine
    issue for trial.” Tenn. R. Civ. P. 56.03. Each fact is to be set forth in a separate,
    numbered paragraph and supported by a specific citation to the record. 
    Id. If the
    moving
    party fails to meet its initial burden of production, the nonmoving party’s burden is not
    -4-
    triggered, and the court should dismiss the motion for summary judgment. Town of
    Crossville Hous. Auth., 
    465 S.W.3d 574
    , 578-79 (Tenn. Ct. App. 2014) (citing Martin v.
    Norfolk S. Ry. Co., 
    271 S.W.3d 76
    , 83 (Tenn. 2008)). However, if the moving party’s
    motion is properly supported, “[t]he burden of production then shifts to the nonmoving
    party to show that a genuine issue of material fact exists.” Hannan v. Alltel Publ’g. Co.,
    
    270 S.W.3d 1
    , 5 (Tenn. 2008) (citing Byrd v. Hall, 
    847 S.W.2d 208
    , 215 (Tenn. 1993)).
    The non-moving party may accomplish this by: “(1) pointing to evidence establishing
    material factual disputes that were overlooked or ignored by the moving party; (2)
    rehabilitating the evidence attacked by the moving party; (3) producing additional
    evidence establishing the existence of a genuine issue for the trial; or (4) submitting an
    affidavit explaining the necessity for further discovery pursuant to Tenn. R. Civ. P.
    56.06.” Martin v. Norfolk S. Ry. Co., 
    271 S.W.3d 76
    , 84 (Tenn. 2008) (citations
    omitted). As the Tennessee Supreme Court has explained:
    [T]o 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” at the summary judgment stage “showing that there is a
    genuine issue for trial.” Tenn. R. Civ. P. 56.06. The nonmoving party
    “must do more than simply show that there is some metaphysical doubt as
    to the material facts.” Matsushita Elec. Indus. 
    Co., 475 U.S. at 586
    , 106 S.
    Ct. 1348. The 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.
    
    Rye, 477 S.W.3d at 265
    . If adequate time for discovery has been provided and the
    nonmoving party’s evidence at the summary judgment stage is insufficient to establish
    the existence of a genuine issue of material fact for trial, then the motion for summary
    judgment should be granted. 
    Id. “A grant
    of summary judgment is appropriate only
    when the facts and the reasonable inferences from those facts would permit a reasonable
    person to reach only one conclusion.” Giggers v. Memphis Hous. Auth., 
    277 S.W.3d 359
    , 364 (Tenn. 2009) (citing Staples v. CBL & Assocs., Inc., 
    15 S.W.3d 83
    , 89 (Tenn.
    2000)).
    IV. Mortgage Electronic Registration Systems, Inc. v. Ditto
    Throughout these proceedings, Mr. Ross has maintained that the Tennessee
    Supreme Court’s decision in Mortgage Electronic Registration Systems, Inc. v. Ditto,
    
    488 S.W.3d 265
    (Tenn. 2015) (“Ditto”) stands for the proposition that MERS had no
    interest in the Property to convey; thus, he asserts that the assignment from MERS to
    CMI was invalid such that CMI did not have the authority to foreclose. As set out in Mr.
    Ross’s motion for summary judgment, he cites the following language from Ditto:
    “MERS is a mortgage registration system that does not itself hold any interest in the
    -5-
    subject property, by virtue of the DOT or otherwise. Rather, MERS is ‘an agent with
    limited powers, akin to a special power of attorney.’” 
    Id. at 292
    (citing Weingartner v.
    Chase Home Finance, LLC, 
    702 F. Supp. 2d 1276
    , 1279-1280 (D. Nev. March 15,
    2010)). Based on this language, Mr. Ross’s motion for summary judgment argues that
    MERS “cannot hold any property interest and that MERS cannot be a beneficiary of a
    Deed of Trust . . . as a matter of law.” As such, he contends that “MERS was never given
    an independent interest in the [Property] and therefore as a matter of law could not assign
    or otherwise transfer any interest that it could not legally possess.” Therefore, “[b]ecause
    MERS as a matter of Tennessee law could not be a beneficiary under any deed of trust on
    the [Property], and because MERS is indicated as a beneficiary on [the Rosses’]
    mortgage documents, which resulted in wrongful foreclosure . . . [Mr. Ross is] entitled to
    judgment as a matter of law.” Because the causes of action set out in Mr. Ross’s second
    amended complaint largely rest on his interpretation of the Ditto holding, we will address
    that holding before proceeding to the substantive question of whether the trial court erred
    in granting Appellees’ motion for summary judgment.
    In Ditto, “Joseph L. Dossett and Gerald Dossett (collectively, “the Dossetts”)
    purchased property located at 5518 Oakdale Avenue in Chattanooga, Hamilton County,
    Tennessee (“the property” or “the subject property”), as joint tenants with the right of
    survivorship.” 
    Ditto, 488 S.W.3d at 267
    . The property was purchased in March 2005,
    and the warranty deed for the property was recorded in the Register's Office for Hamilton
    County, Tennessee. 
    Id. In July
    2006, the Dossetts and their wives borrowed approximately $60,000 from
    Choice Capital Funding, Inc. (“Choice Capital”), which amount was secured by the
    subject property. As is typical in such transactions, the parties executed two documents:
    (1) a promissory note (a negotiable instrument) evidencing the borrowers’ promise to
    repay the loan, and (2) a deed of trust (“DOT”) securing the repayment of the loan by
    transferring title to the property to the trustee and the lender. 
    Id. at 267-68.
    In the DOT,
    the term “Borrower” referred to the Dossetts and their wives. 
    Id. at 268.
    The term
    “Lender” referred to Choice Capital. 
    Id. The “Trustee”
    in the DOT was listed as Robbie
    McLean, Esq., an attorney. 
    Id. Most importantly,
    the DOT described the Mortgage
    Electronic Registration System as “a separate corporation that is acting solely as nominee
    for [Choice Capital] and [Choice Capital’s] successors and assigns.” 
    Id. The DOT
    stated
    that MERS is “the beneficiary under this Security Instrument,” and it included the full
    address and telephone number for MERS. 
    Id. The DOT
    was recorded with the Register
    of Deeds in Hamilton County. 
    Id. Subsequently, the
    Dossetts defaulted on their 2006 property taxes. As a result, the
    property was sold at a tax sale for $10,000. 
    Id. at 271.
    Over a year after the tax sale,
    MERS filed a petition against the tax sale purchaser seeking declaratory judgment to set
    aside the tax sale. 
    Id. MERS argued
    that it possessed a constitutionally-protected
    property right in the subject property. As such, MERS asserted that the lack of notice of
    -6-
    the tax sale to MERS was a violation of its due process rights. 
    Id. The trial
    court granted
    the tax sale purchaser’s Tennessee Rule of Civil Procedure 12.03 motion for judgment on
    the pleadings and held, inter alia, that MERS did not have a protected interest in the
    property. 
    Id. at 273.
    This Court affirmed the trial court’s decision, albeit on a different basis.
    Mortgage Elec. Registration Sys., Inc. v. Ditto, No. E2012-02292-COA-R3-CV, 
    2014 WL 24439
    , at *5-6 (Tenn. Ct. App. Jan. 2, 2014) (“MERS”). We concluded that MERS
    did not have standing to file an action to set aside the tax sale because “MERS was never
    given an independent interest in the property.” MERS, at *5. Rather, the property
    owners mailed payments to the current lender, “while MERS solely recouped payment
    for its services from the current lender and was specifically relegated to the role of
    nominee” for the current lender and its successors and assigns. 
    Id. Relying on
    the
    definition of “nominee” found in Black’s Law Dictionary, i.e., “A person designated to
    act in place of another, usu. in a very limited way” or “A party who holds bare legal title
    for the benefit of others or who receives and distributes funds for the benefit of others.”
    
    Id. (citing Black’s
    Law Dictionary (9th ed.)), we concluded that MERS “did not suffer
    an injury by the sale of the property at issue.” 
    Id. Rather, we
    held that “the only injury
    suffered by MERS related to the future effect this case could have on its business model,
    which is reliant upon the avoidance of county recording fees by placing the onus on the
    county to provide notice to MERS instead of the current lender.” 
    Id. We concluded
    that
    such injury was insufficient to confer standing on MERS: “We fail to see how this is a
    distinct and palpable injury capable of being redressed by this court. Accordingly, we
    uphold the trial court’s grant of Purchaser’s motion for judgment on the pleadings
    because MERS did not have standing to file suit.” 
    Id. On appeal
    to the Tennessee Supreme Court, it framed the issue as whether MERS
    has a property interest that is protected under the Due Process Clause. 
    Ditto, 488 S.W.3d at 275
    . After a thorough recitation of MERS’ role in the mortgage industry, the
    Tennessee Supreme Court held:
    We agree with the conclusion reached by both the Court of Appeals and the
    trial court, that “MERS was never given an independent interest in the
    property.” MERS, 
    2014 WL 24439
    , at *5. MERS is a mortgage
    registration system that does not itself hold any interest in the subject
    property, by virtue of the DOT or otherwise. Rather, MERS is “an agent
    with limited powers, akin to a special power of attorney.” Weingartner[ v.
    Chase Home Financial, LLC, et al.], 702 F. Supp. 2d [1276,] at 1279 [(D.
    Nev. March 15, 2010)]. It has no interest in the subject property that is
    protected under the Due Process Clause, so notice to MERS was not
    compelled by the Constitution. Accordingly, we affirm the trial court’s
    grant of judgment on the pleadings to Mr. Ditto.
    -7-
    
    Ditto, 488 S.W.3d at 292
    .
    Again, based on the Ditto holding, Mr. Ross argues that the property transfer from
    MERS to CMI was invalid because MERS did not have a property interest to convey.
    Thus, he argues that the chain of title to the Property was broken such that the foreclosure
    should be set aside. In ruling on Mr. Ross’s argument, the trial court found, in relevant
    part, that:
    Mr. Ross misconstrues the Ditto case and attempts to expand its scope too
    far. In Ditto, the Tennessee Supreme Court merely answered the question
    of whether MERS had a property interest that was protected under the Due
    Process Clause, compelling notice by the Constitution, to which the
    Supreme Court determined it did not . . . . However, despite this holding in
    Ditto, MERS is still permitted to act as an agent for a lender and its
    successors and to assign a deed of trust and facilitate the foreclosure
    proceedings for a lender, which was performed here.
    We agree with the trial court’s conclusion. The Tennessee Supreme Court merely held
    that “MERS acquired no protected interest in the subject property through either the deed
    of trust’s designation of MERS as the beneficiary solely as nominee for the lender and its
    assigns or its reference to MERS having legal title to the subject property for the purpose
    of enforcing the lender’s rights.” 
    Ditto, 488 S.W.3d at 267
    (emphasis added). Contrary
    to Mr. Ross’s argument, the Ditto Court did not hold that MERS cannot act as an agent
    for a lender and its successors and assigns by being named as such in the deed of trust. In
    fact, the Tennessee Supreme Court noted several decisions where
    courts have upheld MERS’s involvement in mortgage transactions as
    beneficiary ‘solely as nominee’ of the lender. Some of these [cases] hold
    that MERS’s designation as beneficiary ‘solely as nominee’ for lender
    creates an agency relationship between MERS and the lender. This agency
    relationship, they conclude, gives MERS the authority to act on behalf of a
    valid note holder, so MERS can validly assign a deed of trust or enforce a
    note on behalf of the lender.
    
    Ditto, 488 S.W.3d at 283
    . Likewise, in Dauenhauer v. The Bank of New York Melon,
    et al., No. 3:12-CV-01026, 
    2013 WL 2359602
    at * 4 (M.D. Tenn. May 28, 2013), the
    District Court noted that
    [c]ourts have consistently upheld the validity of MERS’s role as nominee
    for a promissory note’s lenders and assigns, and as beneficiary under a deed
    of trust. See Samples v. Bank of Am., N.A., No. 3:12-CV-44, 
    2012 WL 1309135
    , at *3-4 (E.D. Tenn. April 16, 2012) (finding claims based on
    invalid assignment by or the role of MERS in mortgage transactions—
    -8-
    where the deed of trust named MERS as the beneficiary and nominee for
    the lender and its assigns—failed as a matter of law); In re Mortg. Elec.
    Regis. Sys. Litig., MDL, No. 09-2119-JAT, 
    2011 WL 4550189
    , at *3-4 (D.
    Ariz. Oct.3, 2011) (finding a deed of trust can grant MERS authority as the
    beneficiary of the deed and nominee for the note holder); Golliday v. Chase
    Home Fin., LLC, No. 1:10–cv–532, 
    2011 WL 4352554
    , at *7 (W.D. Mich.
    Aug.23, 2011) (“Over the twenty years that MERS has existed, borrowers
    who have defaulted on their loan obligations have attempted, without
    success, to attack the validity of the mortgage based on the involvement of
    MERS.”).
    In line with the foregoing cases, in Ditto, the Tennessee Supreme Court expressly
    stated that it did “not question MERS’s authority to act as agent for the lender and any
    successor lenders” and acknowledged that “MERS is authorized to exercise the rights and
    obligations granted to the lender by the borrowers.” 
    Id. at 291.
    This is exactly the role
    that MERS played in the instant case. Based on the holding in Ditto, which we cannot
    expand to comport with Mr. Ross’s reading, we conclude that MERS was within its right
    as agent of the lender and its successors to assign the Rosses’ deed of trust. Our
    conclusion negates Mr. Ross’s arguments centered on the allegation that the transfer from
    MERS to CMI resulted in a broken chain of title. Furthermore, the undisputed fact that
    the Rosses defaulted on the CMI Note negates their arguments centered on allegations
    that they have superior title in this case. Nonetheless, we will briefly address each of the
    causes of action to determine whether any can survive Appellees’ motion for summary
    judgment.
    V. Summary Judgment
    A. Quiet Title
    Mr. Ross argues that he is entitled to summary judgment on the claim for quiet
    title because he has superior title to the Property. To succeed on the claim for quiet title,
    Mr. Ross must show that he has legal title to the Property and that he should not be
    subjected to various future claims against that title. Dauenhauer, 
    2013 WL 2359602
    , at
    * 6. The Dauenhauer Court further held that “Plaintiffs have failed to plead that they
    have fulfilled their obligation under the Note, a step which is necessary for them to obtain
    superior legal title to the . . . property.” 
    Id. at *7.
    The same is true here. By signing the
    CMI Note, the Rosses agreed to repay the money they were loaned. They admittedly
    defaulted on the note. By signing the CMI Deed, the Rosses conveyed the Property to the
    Trustee and its successors and assigns. In so doing, the Rosses agreed that the Trustee
    and its successors and assigns held legal title and all interests granted by the Deed of
    Trust until the debt was fully paid under the CMI Note. Because the Rosses cannot
    alleged that they have paid the CMI debt in full, they have not shown any right to obtain
    title to the property from the Trustee. 
    Id. at *
    5. In the absence of a plausible claim of
    superior title to this Property, the trial court properly granted summary judgment in favor
    -9-
    of Appellees on the quiet title claim.
    B. Declaratory Relief
    In the second amended complaint, Mr. Ross seeks declaratory relief arguing that
    Appellees have no legal or equitable right under several of the foregoing assignments.
    The trial court held that Mr. Ross “cannot challenge the validity of the assignments, as
    [the Rosses] are not a party to the assignments.”
    The question of standing is an issue of law, which we review de novo. In re
    Estate of Smallman, 
    398 S.W.3d 134
    , 148 (Tenn. 2013) (citing Cox v. Shell Oil Co., 
    196 S.W.3d 747
    , 758 (Tenn. Ct. App. 2005)). “Standing is a judge-made doctrine based on
    the idea that ‘[a] court may and properly should refuse to entertain an action at the
    instance of one whose rights have not been invaded or infringed.’” 
    Cox, 196 S.W.3d at 758
    (citing 59 Am.Jur.2d Parties § 30 (1987)). The primary focus of the standing inquiry
    is on the party, not on the merits of the claims asserted. 
    Id. Here, we
    agree with the trial
    court’s conclusion that the Rosses have no standing to challenge the assignments.
    Third parties to an assignment generally lack standing to challenge the validity of
    the assignment. Livonia Props. Holdings, LLC v. 12840–12976 Farmington Rd.
    Holdings, LLC, 399 F. App’x 97, 102 (6th Cir. 2010). Specifically, a borrower generally
    cannot assert any ground that would render an assignment merely voidable “because the
    only interest or right which an obligor of a claim has in the instrument of assignment is to
    insure him or herself that he or she will not have to pay the same claim twice.” 6A C.J.S.
    Assignments § 133, Westlaw (database updated February 2019); 6 Am. Jur. 2d
    Assignments § 119, Westlaw (database updated February 2019) (“The obligor of an
    assigned claim . . . may not defend on any ground that renders the assignments voidable
    only . . . .”). Rather, a borrower may challenge an assignment only on limited grounds,
    such as when an instrument is nonassignable, the assignee lacks title, or there is a prior
    revocation of assignment. Jones v. Select Portfolio Servicing, Inc., 672 F. App’x 526,
    533 (6th Cir. 2016). However, none of these exceptions apply here. The CMI Deed and
    CMI Note were assignable, and the Rosses do not claim that there was a prior revocation
    of assignment. As such, the Rosses’ challenge would only render the disputed
    assignments voidable. Therefore, we conclude that the trial court did not err in granting
    summary judgment in favor of Appellees on the declaratory relief claim.
    C. Fraudulent Conveyance
    In arguing that Appellees’ fraudulently conveyed the Property, thus negating the
    foreclosure sale, Mr. Ross again argues, under Ditto, that the conveyance from MERS to
    CMI was improper. Relying on 
    Berry, supra
    , the trial court held that the Rosses had no
    standing to challenge the assignments. We agree. Furthermore, to the extent that Mr.
    Ross’s argument rests on his assertion that MERS could not transfer proper title, it fails
    - 10 -
    for the reasons discussed in detail above regarding the holding in Ditto. Mr. Ross has
    asserted no additional grounds to support a finding that the assignments in this case were
    fraudulent. Accordingly, we conclude that the trial court did not err in granting
    Appellees’ motion for summary judgment as to this claim.
    D. Slander of Title
    As framed in the trial court’s final order, Mr. Ross argues that he is entitled to
    summary judgment on the slander of title claim “because of the false and fraudulent
    mortgage documentation and wrongful foreclosure” of the Property. Mr. Ross
    specifically asserts that Appellees: (1) lacked standing to engage in debt collection; (2)
    lacked standing to foreclose on the Property; (3) lacked the ability to enforce the CMI
    Deed; and (4) have “convoluted and broken the chain of title.”
    As explained by the Dauenhauer Court,
    [i]n order to state a claim for slander of title in Tennessee, a plaintiff must
    demonstrate four elements: “(1) that it has an interest in the property, (2)
    that the defendant published false statements about the title to the property,
    (3) that the defendant was acting maliciously, and (4) that the false
    statements proximately caused the plaintiff a pecuniary loss.” Brooks v.
    Lambert, 
    15 S.W.3d 482
    , 484 (Tenn. Ct. App. 1999). Malice is a necessary
    component of a slander of title claim. Waterhouse v. McPheeters, 
    176 Tenn. 666
    , 
    145 S.W.2d 766
    , 767 (1940).
    Dauenhauer, 
    2014 WL 1424494
    , at *8. In granting Appellees’ motion for summary
    judgment on this cause of action, the trial court held that Appellees
    did not commit the offense of slander of title for the [Property]. First, the
    Rosses consented to the use of the MERS as a beneficiary and nominee,
    and specifically agreed that MERS had the authority to enforce the CMI
    Deed of Trust. Thus, MERS’s assignment of the property interest to CMI,
    in accordance with the CMI Deed of Trust, was proper. Second, the Rosses
    again lack standing to assert this claim. Third, the statute of limitations has
    run on this claim.
    (Footnote omitted). We agree with the trial court’s holdings. As discussed above, courts
    have consistently upheld the validity of MERS’s role as nominee for a promissory note’s
    lenders and assigns, and as beneficiary under a deed of trust. See Samples v. Bank of
    Am., N.A., No. 3:12-CV-44, 
    2012 WL 1309135
    , at *3-4 (E.D. Tenn. April 16, 2012). In
    Samples, the District Court for the Eastern District of Tennessee specifically stated that
    - 11 -
    per plaintiffs’ deed of trust, MERS has legal title and may act as nominee
    for the lender and its successor and assigns. . . . Several courts have noted
    that such language explicitly grants MERS the power to act as the agent of
    any valid note holder, including assigning a deed of trust and enforcing a
    note. See e.g. Golliday [v. Chase Home Finance, LLC, No. 1:10–cv–532,]
    
    2011 WL 4352554
    , at *7 [(W.D. Mich. Aug. 23, 2011)]; Ciardi [ v. The
    Lending Co., Inc., et al., No. CV 10-0275-PHX-JAT,] 
    2010 WL 2079735
    ,
    at *3 [(D. Ariz. May 24, 2010)]. Plaintiffs have also offered no legal or
    factual allegation or basis for disregarding the deed of trust signed by
    plaintiffs. Accordingly, any claims plaintiffs have attempted to assert based
    on an invalid assignment or the role of MERS in mortgage transactions will
    be DISMISSED.
    Samples, 
    2012 WL 1309135
    , at *4. The same is true here. The “Transfer of Rights in
    the Property” section of the CMI Deed, which the Rosses executed, states that, “The
    beneficiary of this Security Instrument is MERS (solely as nominee for Lender and
    Lender’s successors and assigns) and the successors and assigns of MERS.” By signing
    this instrument, the Rosses consented to the use of MERS as a beneficiary and nominee.
    Concerning Mr. Ross’s contention that MERS does not have the authority to enforce the
    CMI Deed, the CMI Deed further provides that, “MERS (as nominee for Lender and
    Lender’s successors and assigns) has the right: to exercise any or all of those interests,
    including, but not limited to, the right to foreclose and sell the Property”). By signing the
    CMI Deed, the Rosses consented to MERS enforcement of the CMI Deed. Based on the
    cases, 
    discussed supra
    , confirming MERS’s role as both beneficiary and nominee and its
    authority to exercise all of the interests held by the lender or its successors or assigns,
    including the right to foreclosure, we cannot conclude that the trial court erred in holding
    that MERS’s action in this case was a valid.
    The trial court also held that Mr. Ross lacked standing to challenge the
    assignment. Here, Mr. Ross’s challenge relates to MERS’s authority to execute the
    assignment. He does not assert that any of the rights assigned were nonassignable or that
    the provisions in the CMI Deed that allowed assignment were otherwise revoked. As
    noted above, “[t]he obligor of an assigned claim . . . may not defend on any ground that
    renders the assignments voidable only . . . .” 6 Am. Jur. 2d Assignments § 119, Westlaw
    (database updated February 2019).
    Finally, we agree with the trial court’s conclusion that Mr. Ross’s slander of title
    claim, if any, is barred by the applicable statute of limitations. Slander of title is a
    common law tort of injurious falsehood, which relates to interests of parties in property.
    Wagner v. Fleming, 
    139 S.W.3d 295
    , 301 (Tenn. Ct. App. 2004). Under Tennessee
    Code Annotated section 28-3-105, injuries to real property are governed by a three year
    statute of limitations. At Paragraph 34 of the second amended complaint, Mr. Ross avers
    that
    - 12 -
    [o]n October 25, 2006, [Appellants] refinanced and executed a replacement
    Mortgage on the Property with Defendant Citi, in the amount of
    $575,000.00 . . . . This document was recorded on November 2, 2006 . . .
    in the Register’s Office of Williamson County, Tennessee. . . . This
    document states that “[t]he beneficiary of this Security Instrument is MERS
    . . . .”
    According to the second amended complaint, any cause of action for slander of title
    accrued, at latest, on November 2, 2006. The Rosses filed their original complaint on
    November 8, 2010, which was more than four years after the last possible accrual date.
    Accordingly, the trial court properly held that any slander of title claim was barred by the
    three year statute of limitations. For these reasons, we conclude that Appellees’ motion
    for summary judgment was properly granted as to the slander of title claim.
    E. Injunctive Relief
    Mr. Ross further asserts that he is entitled to summary judgment on the claim for
    injunctive relief. Specifically, he argues that the foreclosure sale should be set aside on
    his showing of “irregularity, misconduct, fraud, unfairness on the part of the trustee or the
    mortgagee that cause or contributed to an inadequate price.” Holt v. Citizens Central
    Bank, 
    688 S.W.2d 414
    , 416 (Tenn. 1984). Tennessee Code Annotated section 29-23-
    202 specifically requires that: “The party applying for relief in such case [i.e., injunctive
    relief from the sale of property under a deed of trust or mortgage] shall distinctly state
    how, when, and to whom the debt or any part of the debt secured aforementioned has
    been paid, or any circumstances of fraud which vitiate the contract.” Id.; see also Tenn.
    R. Civ. P. 65.01, et seq.
    In granting Appellees’ motion for summary judgment on this claim, the trial court
    held that
    there is no evidence of immediate irreparable harm as the foreclosure
    occurred approximately seven (7) years ago. Nor has Mr. Ross tendered an
    injunction bond, as required in Rule 65.05. There are no equities of the
    case which would support an injunction to Mr. Ross, because as Mr. Ross
    concedes, the Rosses were in default when the foreclosure occurred and
    they did not cure the default. . . . Lastly, Mr. Ross has failed to present any
    evidence that the foreclosure sale should be set aside for any irregularity,
    misconduct, fraud, or unfairness based upon the involvement of Defendant
    MERS.
    We agree with the trial court that Mr. Ross is not entitled to injunctive relief to set
    aside the foreclosure sale. In view of the uncontested fact that the Rosses defaulted on
    - 13 -
    the CMI Note and our previous discussion concerning the validity of MERS involvement
    in the foreclosure, Mr. Ross has failed to meet his burden to show that he is entitled to
    injunctive relief. As such, we conclude that the trial court correctly granted summary
    judgment to Appellees on this claim.
    F. Fraud and Misrepresentation
    In order to state a claim for fraud or intentional misrepresentation, Mr. Ross has
    the burden to show the following:
    (i) the defendant made a representation of an existing or past fact; (ii) the
    representation was false when made; (iii) the representation was in regard
    to a material fact; (iv) the false representation was made either knowingly
    or without belief in its trust or recklessly; (v) the plaintiff reasonably relied
    on the misrepresented material fact; and (vi) plaintiff suffered damage as a
    result of the misrepresentation.
    Diggs v. Lasalle Nat. Bank. Ass’n, 
    387 S.W.3d 559
    , 564 (Tenn. Ct. App. 2012).
    As set out in the second amended complaint, Mr. Ross argues that CMI did not
    establish effective control over its foreclosure process such that Appellees
    have apparently engaged in automated “robo-signing,” filed affidavits
    without requisite personal knowledge of the affiant, filed false
    certifications, failed to review documents or other evidence on which the
    certification is based and which it may generally reference, falsely
    identified a signatory, may have forged signatures, have executed notarized
    documents outside the presence of the notary, have proceeded with
    wrongful foreclosure against [Appellants] without proper authority and
    legal standing, have purported to assign the subject Mortgage without
    proper authority and legal standing, and have made other similar
    misrepresentations to [Appellants], upon which they have reasonably and
    justifiably relied to their detriment and damage.
    In granting Appellees’ motion for summary judgment on this count, the trial court
    held that
    Mr. Ross has failed to present any evidence of misrepresentation made by
    [Appellees]. Deborah Ross testified that she had never spoken with a
    representative of CMI and had no evidence regarding any fraudulent
    activities regarding the loan which was refinanced with CMI. Furthermore,
    Mr. Ross testified the alleged misrepresentation made by CMI pertained to
    whether he could obtain a loan modification or other loss mitigation,
    - 14 -
    however, Mr. Ross could not remember what the representative of CMI
    allegedly misrepresented. Plus, although Mr. Ross alleges CMI engaged in
    “Robo-signing” of documents . . . he has no personal knowledge of this and
    thus is not entitled to summary judgment on his fraud claim.
    From our review of the record, the trial court’s findings are undisputed. In the absence of
    either personal knowledge or specific evidence to support Mr. Ross’s allegations of
    fraudulent misrepresentations and/or practices, the trial court correctly granted Appellees’
    motion for summary judgment on this count.
    Furthermore, even if Mr. Ross had produced sufficient evidence to support this
    claim, it would be barred by the applicable three year statute of limitations. Tenn. Code
    Ann. § 28-3-105(1). Mr. Ross’s claims of fraudulent misrepresentation stem from the
    refinancing of the first and second mortgages with CMI. The claims, therefore, arose in
    or about October 2006. As noted earlier, the Rosses’ original complaint was not filed
    until November 8, 2010, which was more than four years after a fraudulent
    misrepresentation claim, if any, would have accrued. For these reasons, the trial court
    correctly granted Appellees’ motion for summary judgment as to this count.
    G. Breach of Contract
    To prevail on a breach of contract claim, a plaintiff has the burden to prove: (1)
    the existence of an enforceable contract; (2) nonperformance amounting to a breach of
    the contract; and (3) damages caused by the breach of the contract. BancorpSouth, Inc.
    v. Hatchel, 
    223 S.W.3d 223
    , 227 (Tenn. Ct. App. 2006). As correctly noted by
    Appellees, the “nonperformance” is not adequately asserted if there is no description of
    what the allegedly breached contract required in the first place. Morris Props., Inc. v.
    Johnson, No. M2007-00797-COA-R3-CV, 
    2008 WL 1891434
    , at *1 (Tenn. Ct. App.
    Dec. 10, 2007).
    Turning to the record, in her deposition testimony, Mrs. Ross conceded that she
    had no knowledge or evidence that Appellees breached the CMI Note. Likewise, there is
    no evidence in the record that Mr. Ross had knowledge of any breach. Rather, as found
    by the trial court, “Mr. Ross appears to completely ignore the fact that the Rosses failed
    to cure the default on the Residence. Thus, it was the Rosses [who] first breach[ed] the
    contract.” We agree. In the absence of any allegation specifying how Appellees
    breached the contract and in view of the undisputed fact that the Rosses defaulted on the
    CMI Note, we cannot conclude that the trial court erred in granting Appellees’ motion for
    summary judgment as to this count.
    H. Violation of the Tennessee Consumer Protection Act (“TCPA”)
    Mr. Ross claims that Appellees violated the TCPA due to “acts and omissions”
    - 15 -
    that occurred before the alleged default and foreclosure proceedings. Specifically, he
    asserts that the “acts and omissions” of the Appellees constitute negligent
    misrepresentations, which constitute violations of the TCPA. In granting Appellees’
    motion for summary judgment on this claim, the trial court found that “[t]he only
    evidence submitted was that Mr. Ross believed there were misrepresentations regarding a
    loan modification, but he could not remember what the [Appellees] said.” Accordingly,
    the trial court held that Mr. Ross “failed to submit any evidence as to a negligent
    misrepresentation performed by [Appellees] and has merely directed the Court to his
    averments in the Complaint.” While the record supports the trial court’s findings, Mr.
    Ross’s TCPA claim ultimately fails because the TCPA does not address foreclosure
    proceedings.
    In Schmidt v. Nat’l City Corp., the District Court for the Eastern District of
    Tennessee recognized that “[t]he actions of a bank in repossessing and disposing of its
    collateral do not constitute violations of the [TCPA], even if the bank acted wrongfully in
    repossessing the collateral.” Schmidt v. Nat’l City Corp, No. 3:06–CV–209, 
    2008 WL 5248706
    , at *8 (E. D. Tenn. Dec.17, 2008). The plaintiffs in Schmidt argued that they
    suffered damages because the bank foreclosed on their home. 
    Id. at *
    1. The plaintiffs
    filed a TCPA claim against the mortgage holder (the bank), and the bank moved for
    summary judgment on the TCPA claim. 
    Id. at *
    8. The Court granted the bank’s motion
    finding that the TCPA did not apply to the bank’s foreclosure. 
    Id. The reasoning
    of
    Schmidt applies in the present case. As the Court recognized in Schmidt, when a debtor
    defaults on a mortgage payment, and the mortgage holder forecloses on the collateral that
    secured the loan (in this case, the Property), the TCPA does not apply. 
    Id. A foreclosure
    does not fall within the TCPA’s definition of “trade,” “commerce,” or “consumer
    transaction.” See Tenn. Code Ann. § 47-18-103(19) (2013); see also Pursell v. First Am.
    Nat. Bank, 
    937 S.W.2d 838
    , 842 (Tenn. 1996) (holding that the TCPA’s definition of
    “trade or commerce” does not extend to dispute arising over repossession of the collateral
    securing a loan.). Accordingly, we conclude that the trial court did not err in granting
    Appellees’ motion for summary judgment on Mr. Ross’s TCPA claim.
    I. Violation of the Federal Fair Debt Collection Practices Act (“FDCPA”)
    In the second amended complaint, Mr. Ross alleges that Appellees violated the
    FDCPA because “none of the [Appellees] appear to be the lawful holder of the mortgage
    upon which they seek to collect and none of the [Appellees] are the real party in interest
    with standing to foreclose or collect on the CMI Note.” Mr. Ross further avers that
    Appellees “are engaged in debt collection, the alleged collection of money from [the
    Rosses], by and through their agents who represent themselves as debt collectors,
    governed under the FDCPA.”
    As correctly noted by the trial court, the FDCPA distinguishes between
    “creditors,” who are not subject to the FDCPA, and “debt collectors,” who are subject to
    - 16 -
    the FDCPA. The Sixth Circuit has noted that “the legislative history of § 1692(a)(6)
    indicates conclusively that a debt collector does not include the consumer’s creditors . . .
    .” Lufkin v. Capital One Bank (USA), N.A., No. 3:10-CV-18, 
    2010 WL 2813437
    , at *5
    (E.D. Tenn. July 16, 2010) (quoting Montgomery v. Huntington Bank, 
    346 F.3d 693
    ,
    698 (6th Cir. 2003). An entity qualifies as a “debt collector” under the FDCPA only if it
    satisfies one of two requirements—either it: (1) “[U]ses any instrumentality of interstate
    commerce or the mails in any business the principal purpose of which is the collection of
    any debts;” or (2) “[R]egularly collects or attempts to collect, directly or indirectly, debts
    owed or due or asserted to be owed or due another.” See 15 U.S.C. § 1692a(6). If a
    plaintiff establishes one of the foregoing prongs, a defendant is considered a “debt
    collector” unless it falls into one of several exceptions, such as where the debt at issue
    “was not in default at the time it was obtained by [the defendant].” See 15 U.S.C. §
    1692a(6)(F)(iii). As noted by the Sixth Circuit, “[t]he term ‘debt collector’ has a
    particular meaning, however: it refers only to persons attempting to collect debts due
    ‘another.’” MacDermid v. Discover Financial Services, 
    488 F.3d 721
    , 734 (6th Cir.
    2007). Stated another way, “a creditor is not a debt collector for purposes of the FDCPA
    and creditors are not subject to the FDCPA when collecting their accounts.” Stafford v.
    Cross Country Bank, 
    262 F. Supp. 2d 776
    , 794 (W.D. KY 2003). In the instant case,
    CMI is not a “debt collector” due to the fact that it held the CMI Note at the time of the
    foreclosure. Rather, it is a “creditor;” as such, the trial court correctly held that the
    FDCPA is not applicable to this case and properly dismissed Mr. Ross’s FDCPA claim.It
    does not matter that CMI assigned its interest in the CMI Note after originating the loan
    because it reacquired the CMI Note later. See Henson v. Santander Consumer USA
    Inc., 
    137 S. Ct. 1718
    , 1721-22 (2017).
    J. Violation of the Real Estate Settlement Procedures Act (“RESPA”)
    Mr. Ross asserts a private right of action under RESPA, 12 U.S.C. § 2601, et seq..
    Specifically, he argues that Appellees violated RESPA sections 2605 and 2607,
    concerning disclosures and notices relating to the assignment, sale, or transfer of
    mortgage servicing, and section 2608, prohibiting kickbacks and unearned fees.
    The trial court dismissed Mr. Ross’s RESPA claims on the ground that same are
    barred by the applicable three-year statute of limitations. We agree with the trial court.
    12 U.S.C. § 2614 provides:
    Any action pursuant to the provisions of section 2605, 2607, or 2608 of this
    title may be brought in the United States district court or in any other court
    of competent jurisdiction, for the district in which the property involved is
    located, or where the violation is alleged to have occurred, within 3 years in
    the case of a violation of section 2605 of this title and 1 year in the case of a
    violation of section 2607 or 2608 of this title from the date of the
    - 17 -
    occurrence of the violation, except that actions brought by the Bureau, the
    Secretary, the Attorney General of any State, or the insurance
    commissioner of any State may be brought within 3 years from the date of
    the occurrence of the violation.
    12 U.S.C. § 2614; see also Wilfong v. CRK Real Estate, LLC, M2013-00188-COA-R3-
    CV, 
    2014 WL 2768631
    , at *7 (Tenn. Ct. App. June 17, 2014) (affirming dismissal of
    RESPA claim due to the running of the three year statute of limitations). Concerning
    what constitutes the “date of the occurrence of the violation,” as used in section 2614,
    courts have interpreted this language to mean the date of the closing of the real estate
    transaction. See Snow v. First American Title Insurance Co., 
    332 F.3d 356
    (5th Cir.
    2003); Wilfong, 
    2014 WL 2768631
    , at *6; Mhoone v. U.S. Bank Home Mortgage, No.
    12-cv-03053-JPM-TMP, 
    2013 WL 6858680
    , at *6 (W.D. Tenn. Dec. 30, 2013).
    It is undisputed that the CMI Note and CMI Deed were signed by the Rosses on
    October 25, 2006. The CMI Deed was recorded on November 2, 2006. Accordingly, the
    statute of limitations for any potential claims under sections 2607 or 2608 of RESPA
    would have expired after November 2, 2007; the Rosses claims under section 2605 would
    have expired after November 2, 2009. The Original Complaint was filed on November 8,
    2010; however, the Rosses did not include a RESPA cause of action until they filed the
    second amended complaint on May 1, 2015. As such, we conclude that the trial court
    correctly dismissed the RESPA claims as time-barred.
    K. Unjust Enrichment
    In the second amended complaint, Mr. Ross asserts that Appellees “Lazarus and
    Heichelbech purchased [the Property] out of wrongful foreclosure and knew or should
    have known of defects in [the] chain of title and other document irregularities.” He
    further claims that Messrs. Lazarus and Heichelbech “actively participated in conversion
    and mortgage fraud” and “paid about one third of the fair market value of the . . .
    Property.” As such, Mr. Ross argues that Messrs. Lazarus and Heichelbech were unjustly
    enriched. The trial court dismissed this claim on grant of summary judgment. As
    discussed in detail above, MERS involvement in the foreclosure did not negate the
    validity of the sale. Furthermore, there is no dispute that the Rosses were in default on
    their mortgage, and they failed to cure the default before the foreclosure. Messrs.
    Lazarus and Heichelbech were simply the purchasers for value; they were not unjustly
    enriched. Accordingly, we conclude that the trial court did not err in dismissing the
    unjust enrichment claim.
    L. Breach of Fiduciary Duties (as to all Trustees and Title Companies)
    In the second amended complaint, Mr. Ross alleges that the original trustee under
    the CMI Deed, the substitute trustee, and various mortgage servicing entities breached
    - 18 -
    certain fiduciary duties owed to CMI and Appellants. Specifically, the complaint avers
    that these Appellees
    failed to exercise due diligence to determine ownership interests and
    condition of [Appellants’] title to their Property prior to foreclosing on it,
    [and] also failed to properly record the necessary documents until after the
    Property had been sold, thereby negligently and unlawfully converting
    [Appellants’] Property to Defendants Lazarus and Heichelbech . . . .
    The trial court dismissed the claims for breach of fiduciary duties stating, in relevant part,
    that:
    The Court has determined above that CMI and the other Defendants are not
    liable for any alleged fraudulent conveyance or false documentation, and
    these Defendants have merely followed the terms of the CMI Deed of Trust
    and CMI Note.
    We agree with the trial court. There is no evidence that Appellees failed to follow proper
    procedure in foreclosing on the Property. The Rosses defaulted on the mortgage and
    CMI foreclosed pursuant to the authority granted in the mortgage documents. Such
    action cannot form the basis for an unlawful conversion or a breach of fiduciary duty. As
    such, we affirm the trial court’s dismissal of the breach of fiduciary duty claims.
    M. Conversion
    Mr. Ross asserts that the Property “was unlawfully converted to third parties
    through wrongful foreclosure and the . . . alleged acts and omissions of the [Appellees].”
    We have previously determined that the undisputed facts show that CMI’s foreclosure of
    the Property was lawful and in compliance with the CMI Deed. In the absence of a
    wrongful foreclosure, there is no conversion. Accordingly, the trial court properly
    dismissed this cause of action on grant of Appellees’ motion for summary judgment.
    N. Promissory Estoppel
    Promissory estoppel is explained as:
    A promise which the promisor should reasonably expect to induce action or
    forbearance on the part of the promisee or a third person and which does
    induce such action or forbearance is binding if injustice can be avoided
    only by enforcement of the promise. The remedy granted for breach may be
    limited as justice requires.
    Amacher v. Brown–Forman Corp., 
    826 S.W.2d 480
    , 482 (Tenn. Ct. App. 1991) (quoting
    - 19 -
    Restatement (Second) of Contracts § 90); see also Alden v. Presley, 
    637 S.W.2d 862
    , 864
    (Tenn. 1982). There are, however, limits to the application of promissory estoppel:
    Detrimental action or forbearance by the promisee in reliance on a
    gratuitous promise, within limits constitutes a substitute for consideration,
    or a sufficient reason for enforcement of the promise without consideration.
    This doctrine is known as promissory estoppel. A promisor who induces
    substantial change of position by the promisee in reliance on the promise is
    estopped to deny its enforceability as lacking consideration. The reason for
    the doctrine is to avoid an unjust result, and its reason defines its limits. No
    injustice results in refusal to enforce a gratuitous promise where the loss
    suffered in reliance is negligible, nor where the promisee’s action in
    reliance was unreasonable or unjustified by the promise. The limits of
    promissory estoppel are: (1) the detriment suffered in reliance must be
    substantial in an economic sense; (2) the substantial loss to the promisee in
    acting in reliance must have been foreseeable by the promisor; (3) the
    promisee must have acted reasonable in justifiable reliance on the promise
    as made.
    
    Alden, 637 S.W.2d at 864
    (citing L. Simpson, Law of Contracts § 61 (2d ed.1965)).
    The doctrine of promissory estoppel is also referred to as “detrimental reliance”
    because the plaintiff must show not only that a promise was made, but also that the
    plaintiff reasonably relied on the promise to his or her detriment. Engenius
    Entertainment, Inc. v. Herenton, 
    971 S.W.2d 12
    , 19-20 (Tenn. Ct. App. 1997) (citing
    Foster & Creighton Co. v. Wilson Contracting Co., 
    579 S.W.2d 422
    , 427 (Tenn. Ct.
    App. 1978)). Furthermore, the promise on which the promisee relied must be
    unambiguous and not unenforceably vague. 
    Amacher, 826 S.W.2d at 482
    . However, a
    “claim of promissory estoppel is not dependent upon the existence of an expressed
    contract between the parties.” Engenius 
    Entertainment, 971 S.W.2d at 19
    (citing
    Arcadian Phosphates, Inc. v. Arcadian Corp., 
    884 F.2d 69
    , 73-74 (2d Cir. 1989)).
    In the second amended complaint, Mr. Ross asserts that Appellees made
    “promises, representations, and assurances,” which the Rosses allegedly relied upon to
    their detriment. Concerning the specific “promises, representations, and assurances”
    made by Appellees, the complaint states only that “[t]he promises, representations, and
    assurances made as stated in County VIII for Breach of Contract were unambiguous and
    made with the intent to deceive [Appellants].” Count VIII, however, does not elaborate
    on the specific misrepresentations. In dismissing the promissory estoppel claim, the trial
    court noted that Mr. Ross has “not presented any evidence of any form of
    misrepresentation made by [Appellees].” We agree. From our review, Mr. Ross makes
    broad accusations of misrepresentations, promises, and assurances but fails to outline the
    - 20 -
    specific statements. As such, we conclude that the trial court properly dismissed the
    promissory estoppel claim on grant of summary judgment.
    O. Negligence
    Mr. Ross further claims that Appellees owed a reasonable duty to exercise
    reasonable care in originating the mortgage, servicing the mortgage, following the law in
    assigning the mortgage, and other duties. Mr. Ross asserts that Appellees breached these
    duties regarding the CMI Deed or the CMI Note. In dismissing this claim, the trial court
    found that Mr. Ross
    failed to present any evidence as to how the [Appellees] were negligent in
    servicing the CMI Deed and the CMI Note. The Court finds this is simply
    a case where the Rosses borrowed money, obtained a benefit from the loan,
    and defaulted on said loan, and now are attempting to avoid the
    consequences of defaulting on the loan.
    We agree with the trial court. Mr. Ross failed to present evidence to show that Appellees
    breached any duty in this case. Again, the Rosses defaulted on their mortgage, which
    event allowed CMI to proceed with foreclosure. As discussed in detail above, Mr. Ross
    has failed to show that Appellees deviated from any duty regarding the foreclosure
    proceedings. Accordingly, we conclude that the trial court correctly dismissed the
    negligence claim.
    VI. Withdrawal of Admissions
    On January 11, 2017, the Rosses served several discovery requests on Appellees.
    CMI responded to the discovery requests on April 13, 2017, and the remaining Appellees
    responded on October 31, 2017. On November 10, 2017, Appellees filed several
    amended responses to the requests for admissions. On January 11, 2018, Appellees filed
    a joint motion, under Tennessee Rule of Civil Procedure 36.02, to withdraw their
    “conclusive admissions.” Specifically, Appellees sought withdrawal of admissions under
    Tennessee Rule of Civil Procedure 36.01, which provides that a
    matter is admitted unless, within 30 days after service of the request, or
    within such shorter or longer time as the court may allow, the party to
    whom the request is directed serves upon the party requesting the
    admission a written answer or objection addressed to the matter, signed by
    the party or by the party’s attorney.
    In their motion, Appellees rely on Tennessee Rule of Civil Procedure 29, which
    states that unless the court orders otherwise, the parties may “modify the procedures
    provided in these rules for other methods of discovery” so long as the parties have
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    stipulated such in writing. Appellees asserted that, under Tennessee Rule of Civil
    Procedure 29, the parties agreed to extend the time for filing discovery responses. As
    such, Appellees maintained that any “conclusive admissions” under Tennessee Rule of
    Civil Procedure 36.01 should be set aside.
    After hearing, the trial court granted Appellees’ motion to withdraw admissions by
    order of February 6, 2018. The trial court specifically held that:
    IT IS HEREBY ORDERED THAT [Appellees’] Motion is granted. The
    Court finds that Tennessee Rule of Civil Procedure 37.02 applies to justify
    withdrawal of admissions to [Appellants’] Requests for Admissions served
    on January 10, 2017. The Court finds that presentation of the merits of the
    actions will be subserved by withdrawal of the admissions and that
    [Appellants] did not satisfy the Court that withdrawal would prejudice
    [Appellants] in maintaining the action on the merits.
    On appeal, Mr. Ross asserts that the trial court’s grant of Appellees’ motion to withdraw
    admission constitutes reversible error.
    Tennessee Rule of Civil Procedure 36.02 provides, in pertinent part:
    Any matter admitted under this rule is conclusively
    established unless the court on motion permits withdrawal or
    amendment of the admission.... [T]he court may permit
    withdrawal or amendment when the presentation of the merits
    of the action will be subserved thereby and the party who
    obtained the admission fails to satisfy the court that
    withdrawal or amendment will prejudice that party in
    maintaining the action or defense on the merits. (emphasis
    added).
    As discussed in Hutcheson v. Irving, No. M2002-03064-COA-R3-CV, 
    2004 WL 419722
    , at *3-*4 (Tenn. Ct. App. March 8, 2004),
    to be entitled to withdraw or amend the admissions at issue Plaintiff must
    establish that the presentation of the merits of this action will be subserved
    by such withdrawal or amendment and that Defendant failed to prove that
    doing so will prejudice Defendant . . . . Our reading of Rule 36.02 leads us
    to conclude that both prongs must be established for Plaintiff to be entitled
    to relief under the rule. Proving one prong without the other is insufficient.
    (Emphasis in original).
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    Concerning the scope of this Court’s review of a trial court’s decision regarding
    the withdrawal of admission, we have explained that:
    Trial courts are granted broad discretion over procedural matters. Douglas
    v. Estate of [Robertson] Robinson, 
    876 S.W.2d 95
    , 97 (Tenn. 1994).
    Appellate courts review decisions regarding procedural matters using the
    deferential “abuse of discretion” standard of review. “An appellate court
    will not reverse a discretionary judgment of the trial court unless it
    affirmatively appears that such discretion has been explicitly abused to
    great injustice and injury of the party complaining.” 
    Id. (citing Tenn.
    R.
    App. P. 36(b); Bruce v. Bruce, 
    801 S.W.2d 102
    , 107 (Tenn. Ct. App.
    1990)). For issues of law, the standard of review is de novo, with no
    presumption of correctness. Lavin v. Jordon, 
    16 S.W.3d 362
    , 364 (Tenn.
    2000).
    Hutcheson, 
    2004 WL 419722
    , at *3; Meyer Laminates (SE), Inc. v. Primavera Distrib.,
    Inc., 
    293 S.W.3d 162
    , 167 (Tenn. Ct. App. 2008) (“The discretion afforded the trial court
    by Rule 36.02 to permit withdrawal or amendment of matters deemed admitted provides
    a modicum of flexibility to avoid any potential injustice that might occur . . . .”); see also
    Lee Med., Inc. v. Beecher, 
    312 S.W.3d 515
    , 524-25 (Tenn. 2010) (“A court abuses its
    discretion when it causes an injustice to the party challenging the decision by (1)
    applying an incorrect legal standard, (2) reaching an illogical or unreasonable decision, or
    (3) basing its decision on a clearly erroneous assessment of the evidence.”).
    As discussed above, Mr. Ross’s theory of the case largely rests on his
    interpretation of the Ditto case and, specifically, whether MERS can transfer title to the
    Property. From our review, Appellees’ withdrawn admissions had no bearing on Mr.
    Ross’s ability to argue his position on MERS’s role in the foreclosure. Furthermore, Mr.
    Ross has failed to demonstrate that he was prejudiced by the withdrawal of the
    admissions. Again, the withdrawal had no effect on Mr. Ross’s ability to further his
    theory under Ditto. Accordingly, we conclude that the trial court did not abuse its
    discretion in allowing the withdrawal of Appellees’ admissions under Tennessee Rule of
    Civil Procedure 36.02.
    VII. Conclusion
    For the foregoing reasons, we affirm the trial court’s order dismissing Appellants’
    complaint. The case is remanded for such further proceedings as may be necessary and
    are consistent with the opinion. Costs of the appeal are assessed to the Appellants, Mark
    Ross, the Estate of Deborah Ross, and their surety, for all of which execution may issue if
    necessary.
    ________________________________
    KENNY ARMSTRONG, JUDGE
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