Dumler v. Nationstar Mortg., LLC, WD 81446

• Citation: 585 S.W.3d 343
• Decision Date: 02 July 2019
• Docket Number: WD 81446
• Parties: Brenda DUMLER, et al., Respondents, v. The NATIONSTAR MORTGAGE, LLC, Appellant.
• Court: Court of Appeal of Missouri (US)

585 S.W.3d 343

Brenda DUMLER, et al., Respondents,
v.
The NATIONSTAR MORTGAGE, LLC, Appellant.

WD 81446

Missouri Court of Appeals, Western District.

OPINION FILED: July 2, 2019
Application for Transfer Denied October 29, 2019

Thomas Rice, Jr., Kansas City, MO, Counsel for Appellant.

Megan Stumph-Turner, Kansas City, MO, Co-Counsel for Appellant.

Susan Robertson, Kansas City, MO, Co-Counsel for Appellant.

J. Zachary Bickel, Kansas City, MO, Co-Counsel for Appellant.

Christopher Wirken, Kansas City, MO, Counsel for Respondent.

Before Division Two: Thomas N. Chapman, Presiding Judge, Mark D. Pfeiffer, and Cynthia L. Martin, Judges

Thomas N. Chapman, Presiding Judge

585 S.W.3d 346

The Nationstar Mortgage, LLC, (Nationstar) appeals from the circuit court’s judgment quieting title to Brenda Dumler’s (Brenda) property¹ and awarding her damages for slander of title based upon Nationstar’s refusal to release a deed of trust that purported to maintain a mortgage lien on Brenda’s real estate. Nationstar argues that Brenda’s actions to quiet title and for slander of title were barred by the applicable statutes of limitation; and that the judgment for slander of title was not supported by substantial evidence. We affirm and remand solely for the circuit court to determine Brenda’s reasonable attorneys' fees on appeal and enter judgment accordingly.

Facts & Procedure²

Brenda and her husband Emmanuel Dumler (Emmanuel) purchased a home in Lee’s Summit, Missouri. Brenda and Emmanuel owned the property as tenants by the entirety. In 2005, Emmanuel filed a Uniform Residential Loan Application, seeking to borrow $624,000.00 from Countrywide Bank, N.A., (Countrywide) using the couple’s Lee’s Summit home as collateral. On December 21, 2005, while Brenda was recovering from an emergency appendectomy, Emmanuel traveled to St. Louis, Missouri, to finalize the residential loan documents.

Emmanuel executed an Adjustable Rate Note (Note), promising to repay the principal loan of $624,000.00 plus accrued interest. On December 21, 2005, Emmanuel also executed the deed of trust (Deed of Trust), granting Countrywide a lien interest in the couple’s home as security for the loan. Brenda did not execute the Note or Deed of Trust, was not present for the closing of the loan, and did not intend to grant Countrywide an interest in the couple’s home. Subsequently, Countrywide was acquired by Bank of America.

Emmanuel made the monthly payments ($4,071.59) on the loan until his death in May of 2013. Following Emmanuel’s death, Brenda went to Bank of America to find out where she stood with respect to the loan that Emmanuel had procured. She was informed by Bank of America employees that they could not discuss the loan with her because her "name was not on the loan."

In July 2013, Nationstar acquired all of the servicing and ownership rights to the Note held by Bank of America. In January 2015, Brenda’s counsel sent a letter to Nationstar requesting that it contact him "to discuss [Nationstar’s] attempt at collecting what appear[ed] to be an invalid mortgage." In April 2015, Brenda’s counsel sent Nationstar another letter, advising that the mortgage issued to Emmanuel was invalid in that it purported to encumber real property that had been owned by Brenda and Emmanuel as tenants by the

585 S.W.3d 347

entirety, but was signed by Emmanuel alone. The April 2015 letter requested that Nationstar "remove the lien filed in Jackson County, Missouri on 19 January 2006 ..." In June 2015, CSM Foreclosure Trustee Corporation (CSM) (which had been retained by Nationstar to assert its interests under the Note and Deed of Trust) sent a letter to Brenda, informing her that she had not signed the Deed of Trust and that her "legal interest in the property remain[ed] outstanding." In an attempt to reform the original Deed of Trust, CSM enclosed with the letter a Consent and Ratification Agreement, which provided, among other things, as follows:

Brenda Sue Dumler hereby grants and conveys to Countrywide Bank, N.A. and its successors and assigns, a complete lien interest in the Premises equal and commensurate with that conveyed by the Deed of trust as and if she had originally signed the document.

The letter threatened Brenda with a lawsuit if she did not execute the ratification agreement.

In July 2015, Brenda’s counsel sent a letter responding to CSM’s June correspondence. The letter advised CSM that Nationstar had no "basis in law or equity to assert a claim against" Brenda or against Emmanuel’s estate (as the period for filing claims had run). Brenda’s counsel also demanded that Nationstar "remove [its] invalid lien by filing the appropriate release with the recorder of deeds office for Jackson County, Missouri." Nationstar did not release its lien on Brenda’s real property.

On May 5, 2016, Brenda filed suit against Nationstar to quiet title to the home, for slander of title, for a declaratory judgment declaring the Deed of Trust invalid, and for attorneys' fees. In response, Nationstar filed a counterclaim for declaratory relief which asked the circuit court to declare that its Deed of Trust represented a valid lien against the property. At trial, Brenda testified that she had accumulated approximately $30,000.00 in attorneys' fees as a result of her efforts to have Nationstar’s lien set aside and asked the circuit court to quiet title by declaring the property hers (free and clear of Nationstar’s lien) so that she could sell it.

The circuit court entered judgment in favor of Brenda and against Nationstar, finding that Brenda did not sign the Note or Deed of Trust, declaring Brenda the sole owner of the property, and declaring Nationstar's Deed of Trust to be an invalid lien against the property. The circuit court also found Nationstar liable for slander of title in that it "wrongfully declared an interest in the property by refusing to remove its claim to the title to the home and publishing those statements to the public through the Jackson County, Missouri Recorder of Deeds in the form of the Deed of Trust." The circuit court found that Brenda did not plead or prove specific damages. It awarded Brenda $25,000.00 as damages for slander of title and $5,000.00 in attorneys' fees.

Nationstar timely appeals.

Discussion

Nationstar raises three points on appeal. It argues (1) that the circuit court erred in entering its judgment quieting title in Brenda’s name and setting aside Nationstar’s lien because the action was barred by the ten-year statute of limitations; (2) that Brenda’s action for slander of title was barred by the five-year statute of limitations; and (3) that the judgment for slander of title was not supported by substantial evidence in that the actions being asserted by Brenda were barred by the statute of limitations, Brenda failed to show that Nationstar maliciously published any statements as it did not record the

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Deed of Trust, and Brenda failed to prove pecuniary loss to support the award of damages.

In its first point on appeal, Nationstar argues that Brenda’s action to quiet title was time-barred because the Deed of Trust was recorded on January 19, 2006, and Brenda did not file suit until May 5, 2016.³ Nationstar's point on appeal ignores that, in addition to resolving Brenda's quiet title action, the judgment resolved the parties' competing declaratory relief claims which asked the circuit court to determine the validity of Nationstar's Deed of Trust. The resolution of the declaratory relief claims effectively controlled the circuit court's resolution of the quiet title action. Nationstar concedes that Brenda's right to seek declaratory relief regarding the actual controversy (validity of the Deed of Trust) arose after Emmanuel's death, and that her declaratory action was timely filed. More to the point, Nationstar filed an affirmative claim seeking resolution of the same actual controversy. Nationstar's failure to challenge the judgment's determination of the competing declaratory relief actions in favor of Brenda and against Nationstar is fatal to its appeal. STRCUE, Inc. v. Potts , 386 S.W.3d 214, 219 (Mo. App. W.D. 2012) (holding that the failure to challenge a finding and ruling that would support the conclusion complained about is fatal to an appeal).

During oral argument, Nationstar acknowledged that it had not appealed the judgment's determination of the declaratory relief claims. Nationstar argued, however, that we should resolve an alleged conflict between the statute of limitations for quiet title actions (which Nationstar argues commenced to run on the recordation of its Deed of Trust) with the statute of limitations for declaratory relief which Nationstar concedes began to run sometime after Emmanuel's death. This alleged conflict, assuming arguendo that it even exists, is not raised, however, as a point on appeal, preserving nothing for appellate review. Jones v. City of Kansas City , 569 S.W.3d 42, 50 n.6 (Mo. App. W.D. 2019) (holding that pursuant to Rule 84.04(e), we do not address arguments not fairly encompassed in a point on appeal). In fact, the only mention of declaratory relief in the...