Avila v. Community Bank of Virginia, No. WD 61568.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtLisa White Hardwick
Citation143 S.W.3d 1
Decision Date26 August 2003
Docket NumberNo. WD 61568.
PartiesRichard A. AVILA and Dana Avila, Appellants, v. COMMUNITY BANK OF VIRGINIA, et al, GMAC-Residential Funding Corporation, US Bank Trust NA as Trustee for FirstPlus Home Loan Trust 1996-2, FirstPlus Home Loan Owner Trust 1996-3, 1996-4, 1997-1, and Ace Securities Corporation Home Loan, Trust 1999-A, EquityPlus Financial, Inc., U.S. Bank NA, US Bank NA ND, FirstPlus Home Loan Owner Trusts 1997-2, 1997-3, 1997-4, 1009-1, 1998-2, 1998-3, 1998-4, 1998-5, Respondents.
143 S.W.3d 1
Richard A. AVILA and Dana Avila, Appellants,
v.
COMMUNITY BANK OF VIRGINIA, et al, GMAC-Residential Funding Corporation, US Bank Trust NA as Trustee for FirstPlus Home Loan Trust 1996-2, FirstPlus Home Loan Owner Trust 1996-3, 1996-4, 1997-1, and Ace Securities Corporation Home Loan, Trust 1999-A, EquityPlus Financial, Inc., U.S. Bank NA, US Bank NA ND, FirstPlus Home Loan Owner Trusts 1997-2, 1997-3, 1997-4, 1009-1, 1998-2, 1998-3, 1998-4, 1998-5, Respondents.
No. WD 61568.
Missouri Court of Appeals, Western District.
August 26, 2003.
Motion for Rehearing and/or Transfer to Supreme Court Denied June 1, 2004.
Application for Transfer Denied September 28, 2004.

Appeal from the Circuit Court, Jackson County, James D. Williamson, Jr., J.

[143 S.W.3d 2]

J. Michael Vaughan, Kansas City, for Appellants.

Laurence R. Tucker, Kansas City, for Community Bank of Northern VA.

Randolph G. Willis, Kansas City, MO, for GMAC-Residential Funding.

Daniel L. McClain, Co-Counsel for GMAC-Residential Funding.

Mark A. Olthoff, Kansas City, MO, for US Bank Trust NA, US Bank, NA, US Bank NA ND, FirstPlus Home Loan Owner Trusts 1997-2, 1997-3, 1997-4.

Scott M. Brinkman, Kansas City, MO, for EquityPlus Financial.

Leslie A. Greathouse, for Ace Securities Corporation, U.S. Bank Trust NA as Trustee for FirstPlus Home Loan Trust, FirstPlus Home Loan Owner Trusts 1996-3, 1996-4, 1997-1.

Before HOWARD, P.J., LOWENSTEIN and HARDWICK, JJ.

LISA WHITE HARDWICK, Judge.


Richard and Dana Avila appeal the circuit court's dismissal of their claims against Community Bank of Northern Virginia ("Community Bank") and GMAC-Residential Funding Corporation ("GMAC") for violations of the Second Mortgage Loan Act ("SMLA"), Section 408.231 et seq.1 We affirm the circuit court's dismissal because the Avilas failed to state a claim under the SMLA on which relief could be granted.

FACTUAL AND PROCEDURAL HISTORY

On June 30, 1998, the Avilas obtained from Community Bank a $30,000 loan secured by a second mortgage on the Avilas' home. The loan was to be repaid over fifteen years at an annual interest rate of 13.5%. To obtain the loan, the Avilas were required to pay a loan origination fee of $2,400 to an affiliate company of Community Bank, a title examination fee of $231, an overnight fee of $25, and a processing fee of $200 to a title company.

In June 2001, the Avilas filed a class action lawsuit, in the Circuit Court of Jackson County, alleging that Community Bank's lending practices violated the SMLA. The Avilas sought to represent a statewide class of real estate owners who obtained second mortgage loans from Community Bank. In their Second Amended Petition, the Avilas alleged Community Bank violated the SMLA by disguising a finder's fee as a loan origination fee, and by charging non-bona fide fees for title examination, processing, and overnight handling. The lawsuit named nineteen additional defendants allegedly involved in the lending practices, including GMAC, which was an assignee on some of the second mortgage loans originated by Community

143 S.W.3d 3

Bank. The Avilas sought recovery of any improperly collected fees and interest paid, the forfeiture of future interest due on the loan, punitive damages, costs, and attorney's fees.

Community Bank and GMAC, as well as several other defendants, filed motions to dismiss the petition2 for failure to state a claim under the SMLA. In a summary order, the circuit court granted the motions and dismissed without prejudice the claims against those defendants in the Second Amended Petition. The Avilas then voluntarily dismissed without prejudice all remaining defendants and claims in the Second Amended Petition. On appeal, the Avilas challenge only the circuit court's judgment dismissing without prejudice all claims against Community Bank and GMAC.

APPELLATE JURISDICTION

Although no jurisdictional objection has been raised, we must sua sponte determine our authority to review the circuit court's judgment of dismissal without prejudice. Chromalloy American Corp. v. Elyria Foundry Co., 955 S.W.2d 1, 3 (Mo. banc 1997). Appellate jurisdiction is contingent upon the existence of a final judgment. Bush Const. Machinery, Inc. v. Kansas City Factory Outlets, L.L.C., 37 S.W.3d 852, 854 (Mo.App. W.D.2001). A judgment is final when it disposes of all issues and parties in a case and leaves nothing for future determination. Gibson v. Brewer, 952 S.W.2d 239, 244 (Mo.banc 1997).

A dismissal without prejudice permits the petitioner to bring another action for the same cause. Rule 67.013 Because it leaves open the prospect of a future determination, a dismissal without prejudice generally is not a final judgment and, therefore, is not appealable. Bush, 37 S.W.3d at 854. An exception to this general rule arises when a petition is dismissed without prejudice for failure to state a claim on which relief can be granted and the plaintiff elects not to refile or amend the pleadings. Mahoney v. Doerhoff Surgical Services, 807 S.W.2d 503, 506 (Mo. banc 1991). If the plaintiff takes no action to correct the petition, the effect of the circuit court's decision is to dismiss the cause of action and not merely the pleading. Id. Under these circumstances, the judgment of dismissal — albeit without prejudice — operates as a final determination on the merits and, therefore, may be appealed. Id.

All claims and defendants named in the Avila's Second Amended Petition were dismissed without prejudice. Because the Avilas opted not to refile or further amend the petition, the dismissal amounts to a final adjudication that no causes of action exist against any of the defendants. We have jurisdiction to review the judgment of dismissal without prejudice of all claims against Community Bank and GMAC because it fully and finally disposes of all parties and claims in the Second Amended Petition.

Issue on Appeal

The Avilas contend the circuit court erred in granting the motions to dismiss because the Second Amended Petition properly stated a claim for relief under the SMLA against Community Bank and GMAC. While the circuit court did not

143 S.W.3d 4

explain the reasons for dismissal, we presume the decision was based on grounds stated in the dismissal motions and will affirm if dismissal was appropriate on any grounds stated therein. Duvall v. Lawrence, 86 S.W.3d 74, 78 (Mo.App. E.D.2002).

A motion to dismiss is an attack on the petition and solely a test of the adequacy of the pleadings. Wheeler v. Sweezer, 65 S.W.3d 565, 568 (Mo.App. W.D.2002). Upon...

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2 practice notes
  • Steven v. Residential Funding Corp.., Nos. WD 70210
    • United States
    • Court of Appeal of Missouri (US)
    • November 23, 2010
    ...designed to regulate the business of making high interest second mortgage loans on residential real estate.” Avila v. Cmty. Bank of Va., 143 S.W.3d 1, 4 (Mo.App. W.D.2003) (internal quotation marks and citation omitted). Although Missouri law prohibits lenders from charging interest of more......
  • Jennings v. Bd. of Curators of Mo. State Univ., No. SD 31900.
    • United States
    • Court of Appeal of Missouri (US)
    • September 18, 2012
    ...the petition almost academically to determine if the alleged facts state a recognizable action. See Avila v. Community Bank of Virginia, 143 S.W.3d 1, 4 (Mo.App.2003). Nonetheless, “motions to dismiss for failure to state a claim have substantially more ‘bite’ under our ‘fact pleading’ rule......
5 cases
  • Phipps v. F.D.I.C., No. 03-3423.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • July 28, 2005
    ...on the loan; and (3) the fees charged in connection with the loan were not authorized by Section 408.233." Avila v. Cmty. Bank of Va., 143 S.W.3d 1, 4-5 (Mo.Ct.App.2003). The SMLA "shall not apply to any loans on which the rate of interest ... charged [is] lawful ...." Mo. Rev.Stat. § 408.2......
  • Steven v. Residential Funding Corp.., Nos. WD 70210
    • United States
    • Court of Appeal of Missouri (US)
    • November 23, 2010
    ...designed to regulate the business of making high interest second mortgage loans on residential real estate.” Avila v. Cmty. Bank of Va., 143 S.W.3d 1, 4 (Mo.App. W.D.2003) (internal quotation marks and citation omitted). Although Missouri law prohibits lenders from charging interest of more......
  • Jennings v. Bd. of Curators of Mo. State Univ., No. SD 31900.
    • United States
    • Court of Appeal of Missouri (US)
    • September 18, 2012
    ...the petition almost academically to determine if the alleged facts state a recognizable action. See Avila v. Community Bank of Virginia, 143 S.W.3d 1, 4 (Mo.App.2003). Nonetheless, “motions to dismiss for failure to state a claim have substantially more ‘bite’ under our ‘fact pleading’ rule......
  • Davis v. Citibank, N.A., Case No. 4:14 CV 1129 CDP
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • March 4, 2015
    ...loan; and (3) the fees charged in connection with the loan were not authorized by Section 408.233. See Avila v. Commty. Bank of Virginia, 143 S.W.3d 1, 4-5 (Mo. Ct. App. 2003); Phipps v. F.D.I.C., 417 F.3d 1006, 1014 (8th Cir. 2005). Neither party in the instant case disputes that the post-......
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