DLJ Mortg. Capital, Inc. v. Creative Client Recovery, Inc., ED 109090

CourtCourt of Appeal of Missouri (US)
Writing for the CourtKURT S. ODENWALD, Presiding Judge
Citation637 S.W.3d 612
Parties DLJ MORTGAGE CAPITAL, INC., Respondent, v. CREATIVE CLIENT RECOVERY, INC., et al., Appellants.
Docket NumberNo. ED 109090,ED 109090
Decision Date16 November 2021

637 S.W.3d 612

DLJ MORTGAGE CAPITAL, INC., Respondent,
v.
CREATIVE CLIENT RECOVERY, INC., et al., Appellants.

No. ED 109090

Missouri Court of Appeals, Eastern District, DIVISION ONE.

FILED: November 16, 2021
Motion for Rehearing and/or Transfer to Supreme Court Denied December 20, 2021
Application for Transfer Denied February 8, 2022


For Creative Client Recovery, Inc., Appellant: Kevin J. Kasper, Ryan P. Schellert, 3930 Old Hwy 94 South, Ste. 108, St. Charles, MO 63304.

For Ronald E. Bell, Sr., Ronald E. Bell, Jr., Linda Bell, Mary Bell, Chinh Smith, Appellants: James E. Klenc, 1360 S. Fifth St., Ste. 340, St. Charles, MO 63301.

For Respondent: Randall F. Scherck, Tali L. Katz, 10 S. Broadway, Ste. 2000, St. Louis, MO 63101.

KURT S. ODENWALD, Presiding Judge

Introduction

Creative Client Recovery, Inc. ("CCR") and Ronald Bell, Sr., et al. (the "Bells") (collectively, "Appellants") appeal from the judgment of the trial court in favor of DLJ Mortgage Capital, Inc. ("DLJ") on its claim for judicial foreclosure and on CCR's counterclaims for quiet title and judicial foreclosure (the "2020 Judgment"). CCR raises ten points on appeal, and the Bells raise seven points on appeal. The primary issue on appeal is the priority of competing liens on the subject property. CCR challenges the trial court's grant of judgment on the pleadings to DLJ on CCR's counterclaims, alleging CCR owned judgment liens having priority over DLJ's liens. Relatedly, CCR contends the trial court's judgment was vague and indefinite as to other liens on the subject property and failed to acknowledge CCR's interest in its judgment liens.

While CCR raises the issue of lien priority within its first point on appeal, CCR has not met its burden to demonstrate that its liens had priority over DLJ's lien. CCR abandoned this issue by failing to provide relevant legal authority within its argument and instead relying solely upon conclusory statements to support its claim of lien priority. For that reason, we deny CCR's first point on appeal. However, the trial court failed to set forth CCR's interest on its judgment liens, and DLJ concedes CCR is a junior lienholder. We therefore grant CCR's claim of error in Point Ten to the extent that the trial

637 S.W.3d 616

court's judgment failed to declare that the surplus following the foreclosure sale, if any, should be distributed to satisfy CCR's judgments liens. Accordingly, we remand on CCR's Point Ten to the trial court with instructions to specify in the judgment the amount of CCR's judgments liens which are entitled to payment from the foreclosure-sale surplus, if any exists. The trial court's judgment is affirmed in all other respects. Because the remaining points on appeal lack merit, and a formal, published discussion addressing those points would serve no jurisprudential purpose, a memorandum discussing the points not covered in this opinion has been furnished to the parties pursuant to Rule 84.16(b).1

Factual and Procedural History

This appeal arises out of decades-long litigation involving numerous parties and interests on the subject of real property located at 3435 Tiverton Drive in St. Charles, Missouri (the "Property"). In the current action on appeal, DLJ petitioned for judicial foreclosure on an equitable judgment lien it obtained on the Property following the entry of a judgment in 2010 (the "2010 Judgment"). CCR counterclaimed for quiet title and judicial foreclosure on a judgment lien it obtained on the Property following a judgment entered in 2000. The trial court recognized that the main dispute involved lien priority between DLJ and CCR. The following facts are limited to only those issues, actions, and parties necessary to resolve the points on appeal discussed herein.

I. DLJ's Judgment Lien

DLJ's equitable judgment lien derives from a judgment entered in 2010 in a separate action in which suit was brought to recover on a defaulted deed of trust for the Property. DLJ was substituted as the plaintiff after being assigned the mortgagee's rights, title, and interest in the Property. Although the case did not proceed to trial, the parties—including the purported mortgagor, Cheryl Polk ("Polk"), as well as Ronald Bell ("Bell Sr."), "Mrs. Ronald Bell," Ronald Bell Jr. ("Bell Jr."), and John and Jane Doe—came to various agreements, and the circuit court issued the 2010 Judgment granting DLJ's claims for quiet title, declaratory judgment, and an equitable judgment lien. The 2010 Judgment granted DLJ a first priority lien on the Property effective retroactively from October 2005. The 2010 Judgment ordered DLJ to pay $30,000 to "Bell"—not specifying Jr. or Sr.— and ordered "Bell" to vacate the Property as well as to execute a quitclaim deed if requested by DLJ. The 2010 Judgment stated that all other claims of all other parties were dismissed with prejudice and ordered all parties to cooperate in effecting its terms.2

CCR was not a party to the litigation leading to the 2010 Judgment. No party from the case appealed from or moved to set aside the 2010 Judgment.3

637 S.W.3d 617

II. CCR's Judgment Liens

The circuit court in August 2000 entered civil judgments in favor of Washburn Machinery, Inc. for $103,520.07 and Wesco Machinery, Inc. for $9,400 against "Ron Bell"—later judicially determined to be against Bell Sr. and not Bell Jr. Both companies assigned their rights and interests to CCR in 2006. CCR revived these civil judgments in 2010 and again in July 2013.

III. DLJ's Current Action for Judicial Foreclosure

In the case giving rise to this appeal, DLJ petitioned to judicially foreclose on the Property under Section 443.1904 based on the 2010 Judgment granting DLJ a first priority lien. CCR counterclaimed for quiet title and judicial foreclosure on the Property.

DLJ moved for judgment on pleadings asserting its lien priority over CCR's judgment lien. The trial court entered judgment on the pleadings in favor of DLJ in December 2018. In the judgment, the trial court found that CCR failed to revive the judgment liens within three years of its 2013 revival, and concluded that CCR lost any liens it had on the Property. The trial court further specified that any liens CCR may have had on the Property lost priority over DLJ's lien when CCR allowed its liens to lapse.

Following two trials, the trial court entered final judgment in April 2020 granting DLJ judicial foreclosure on the Property and denying all other claims.5 The trial court restated its prior judgment on the pleadings finding in favor of DLJ on CCR's counterclaims. In reaching its judgment in favor of DLJ, the trial court noted that DLJ through assignment had become the holder of loan documents originally executed by a mortgagee who had been defrauded into loaning the sum of $382,516.85 for the purchase of the Property, which provided the basis for DLJ's equitable lien in the 2010 Judgment. The trial court found that the parties agreed that Bell Sr. was the owner of the Property, and that the 2010 Judgment showed Bell Sr. would receive $30,000 from DLJ and that DLJ would receive a first priority lien on the Property. The trial court concluded that DLJ had the right to judicially foreclose on the Property. The trial court ordered the Property to be sold at a sheriff's sale and stated that the successful bidder at the foreclosure sale would be the only party retaining any right, title, interest, equity, or lien on the Property. Following the 2020 Judgment, CCR and the Bells moved for a new trial, which the trial court denied. Both parties appealed, and we consolidated their appeals for review.

Points on Appeal

In this consolidated appeal, CCR raises ten points on appeal, and the Bells raise seven points on appeal. CCR's Point One argues the trial court erred as a matter of law in granting DLJ's motion for judgment on the pleadings because CCR's liens neither lapsed nor lost priority under Sections 511.350 and 511.360, which specify judgment liens last for a period of ten years. Point Nine maintains the trial court's 2020 Judgment was void and unenforceable because it was vague and indefinite as to the existence and priority of other liens on the Property. Point Ten

637 S.W.3d 618

avers that the trial court erred as a matter of law by failing to enumerate CCR's interest in the Property because quiet-title actions require such a finding. The remaining fourteen points on appeal are set forth in a memorandum furnished to the parties pursuant to Rule 84.16(b).

Standard of Review

We review the judgment in a court-tried case for whether the judgment is unsupported by substantial evidence, is against the weight of evidence, or erroneously declares or misapplies the law. Peoples Nat'l Bank, N.A. v. Fish, 600 S.W.3d 273, 278 (Mo. App. E.D. 2020) (citing Ivie v. Smith, 439 S.W. 3d 189, 198-99 (Mo. banc 2014) ; Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976) ). "We view the evidence and its reasonable inferences in the light most favorable to the trial court's judgment and we disregard contrary evidence and inferences." Fed. Nat'l Mortg. Ass'n v. Bostwick, 414 S.W.3d 521, 524 (Mo. App. W.D. 2013) (internal citation omitted).

"[I]n reviewing a court-tried...

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3 practice notes
  • Thieret Family, LLC v. Delta Plains Servs., LLC, ED 109440
    • United States
    • Court of Appeal of Missouri (US)
    • 16 Noviembre 2021
    ...dismissed Counts I and II of the Petition as to Delta and Brown in its Judgment and Order entered on August 14, 2020. Accordingly, 637 S.W.3d 612 we AFFIRM the circuit court's dismissal of Counts I and II of the Petition as to Delta and Brown. For clarity, although the dismissal of Counts I......
  • Sansone v. Governor of Mo., WD 84426
    • United States
    • Court of Appeal of Missouri (US)
    • 7 Junio 2022
    ...its own research and crafting its own argument on behalf of the appellant." DLJ Mortg. Cap., Inc. v. Creative Client Recovery, Inc., 637 S.W.3d 612, 619 (Mo. App. 2021). Because Sansone fails to support his contention that he is entitled to seek injunctive relief under Chapter 109 with......
  • Sansone v. Governor of Mo., WD84426
    • United States
    • Court of Appeal of Missouri (US)
    • 7 Junio 2022
    ...its own research and crafting its own argument on behalf of the appellant." DLJ Mortg. Cap., Inc. v. Creative Client Recovery, Inc., 637 S.W.3d 612, 619 (Mo. App. 2021). Because Sansone fails to support his contention that he is entitled to seek injunctive relief under Chapter 109 with......
3 cases
  • Thieret Family, LLC v. Delta Plains Servs., LLC, ED 109440
    • United States
    • Court of Appeal of Missouri (US)
    • 16 Noviembre 2021
    ...dismissed Counts I and II of the Petition as to Delta and Brown in its Judgment and Order entered on August 14, 2020. Accordingly, 637 S.W.3d 612 we AFFIRM the circuit court's dismissal of Counts I and II of the Petition as to Delta and Brown. For clarity, although the dismissal of Counts I......
  • Sansone v. Governor of Mo., WD 84426
    • United States
    • Court of Appeal of Missouri (US)
    • 7 Junio 2022
    ...its own research and crafting its own argument on behalf of the appellant." DLJ Mortg. Cap., Inc. v. Creative Client Recovery, Inc., 637 S.W.3d 612, 619 (Mo. App. 2021). Because Sansone fails to support his contention that he is entitled to seek injunctive relief under Chapter 109 with......
  • Sansone v. Governor of Mo., WD84426
    • United States
    • Court of Appeal of Missouri (US)
    • 7 Junio 2022
    ...its own research and crafting its own argument on behalf of the appellant." DLJ Mortg. Cap., Inc. v. Creative Client Recovery, Inc., 637 S.W.3d 612, 619 (Mo. App. 2021). Because Sansone fails to support his contention that he is entitled to seek injunctive relief under Chapter 109 with......

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