Fields v. Millsap and Singer, P.C.

• Citation: 295 S.W.3d 567
• Decision Date: 18 August 2009
• Docket Number: No. WD 70237.,WD 70237.
• Parties: Darryl FIELDS and Renee Fields, Appellants, v. MILLSAP AND SINGER, P.C., Successor Trustee, and Wells Fargo Bank, NA., Respondents.
• Court: Court of Appeal of Missouri (US)

295 S.W.3d 567

Darryl FIELDS and Renee Fields, Appellants, v. MILLSAP AND SINGER, P.C., Successor Trustee, and Wells Fargo Bank, NA., Respondents.

No. WD 70237.

Missouri Court of Appeals, Western District.

August 18, 2009.

Motion for Rehearing and/or Transfer to Supreme Court Denied September 22, 2009.

Application for Transfer Denied November 17, 2009.

Larry D. Coleman, Esq., Raytown, MO, for appellant.

Charles S. Pullium, III, Esq., and Scott D. Mosier, Esq., Chesterfield, MO, for respondent.

Before DIVISION ONE: ALOK AHUJA, Presiding Judge, JAMES M. SMART and LISA WHITE HARDWICK, Judges.

LISA WHITE HARDWICK, Judge.

Darryl Fields and Renee Fields ("Fields") appeal the circuit court's grant of summary judgment in favor of Millsap & Singer, P.C., and Wells Fargo Bank, NA., (collectively, "Respondents"), on the Fields' claims for rescission, quiet title, and damages for wrongful foreclosure. The Fields contend there were genuine issues of material fact that precluded summary judgment. They also contend the circuit court erred in failing to consolidate an unlawful detainer action with this action. For reasons explained herein, we dismiss the appeal of summary judgment on the claims for rescission and quiet title and affirm summary judgment on the claim for damages for wrongful foreclosure.

FACTUAL AND PROCEDURAL HISTORY

The Fields owned a home in Belton, Missouri. They took out two loans, each secured by a deed of trust that pledged their home ("property") as security for the loans. The loan secured by the first deed of trust was in the original principal amount of $616,000.00. The loan secured by the second deed of trust was in the original principal amount of $154,000.00.

The Fields defaulted on their loan payments. On January 17, 2006, Wells Fargo, as the holder of the second note and deed of trust, referred the second deed of trust to Millsap & Singer, the successor trustee, to begin foreclosure proceedings. Wells Fargo purchased the property at the foreclosure sale on February 21, 2006.

In April 2006, the Fields filed a first amended petition for rescission, quiet title, and damages for wrongful foreclosure against Respondents. In their claims for rescission and quiet title, the Fields alleged they were not given notice of their right to redeem the property under Section 443.410, RSMo 2000.¹ They asked the circuit court to rescind the foreclosure sale and restore the status quo so they could pay off or bring current their payments on the second deed of trust. In the wrongful foreclosure claim, the Fields alleged that they were entitled to damages because they were not properly notified of their right to cure, as set forth in Section 408.555, and were not given "a meaningful opportunity" to exercise it.

In November 2006, the first deed of trust was foreclosed upon, and Deutsche Bank purchased the property at the foreclosure sale. Respondents subsequently filed a joint motion for summary judgment on all of the Fields' claims. While the motion for summary judgment was pending, Deutsche Bank filed a separate suit for unlawful detainer against the Fields to obtain possession of the property. The Fields filed a motion to consolidate Deutsche Bank's unlawful detainer action with this case. While the motion to consolidate was pending, the circuit court entered judgment in favor of Deutsche Bank on its unlawful detainer claim. The court did not expressly rule on the motion to consolidate.

The circuit court granted Respondents' motion for summary judgment. The Fields appeal.

ANALYSIS

Summary Judgment Ruling

In Point I, the Fields contend the circuit court erred in granting summary judgment on their claims for rescission, quiet title, and damages for wrongful foreclosure. Respondents contend the appeal is moot as to the Fields' claims for rescission and quiet title. "A case is moot where an event occurs that makes the court's decision unnecessary or makes it impossible for the court to grant effectual relief." Carlisle v. Carlisle, 277 S.W.3d 801, 802 (Mo.App.2009). Respondents argue the recent event that makes it impossible for this court to grant relief is the foreclosure on the first deed of trust and Deutsche Bank's purchase of the property at the foreclosure sale.

"In Missouri, the earliest recorded, or `senior,' deed of trust generally has priority over later recorded, or `junior,' deeds of trusts." Golden Delta Enters., L.L.C. v. U.S. Bank, 213 S.W.3d 171, 175 (Mo.App.2007). "The proper foreclosure of a senior deed of trust extinguishes deeds of trust and other interests junior to it." Id. "This is because a purchaser at the foreclosure sale acquires title as it existed on the date the foreclosed deed of trust was recorded." Id.

When Wells Fargo purchased the property at the foreclosure sale on the second deed of trust, its interest was junior to that of the first deed of trust. When the first deed of trust was foreclosed upon and Deutsche Bank purchased the property at the foreclosure sale, Wells Fargo's interest in the property was extinguished. Deutsche Bank took the property free and clear of Wells Fargo's junior interest. Thus, even if the Fields were to prevail in this appeal, they would not be entitled to the relief of rescission or quiet title because Deutsche Bank's purchase of the property at the foreclosure sale divested all of the parties to this appeal—the Fields, Millsap & Singer, and Wells Fargo—of any right, claim, or title to the property.² Because it is impossible for us to grant any relief to the Fields on their claims for rescission and quiet title, we dismiss as moot their appeal of the summary judgment on those claims.³

The only reviewable issue from the Fields' Point I is whether the circuit court properly granted summary judgment on their claim for damages for wrongful foreclosure. Our review of a summary judgment is essentially de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). We view the record in the light most favorable to the party against whom judgment was entered and give that party the benefit of all reasonable inferences. Id. We will uphold the grant of summary judgment where no genuine issues of material fact exist and the movant is entitled to judgment as a matter of law. Id.

"A tort action for damages for wrongful foreclosure lies against a mortgagee only when the mortgagee had no right to foreclose at the time foreclosure proceedings were commenced." Dobson v. Mortgage Elec. Registration Sys., Inc./ GMAC Mortgage Corp., 259 S.W.3d 19, 22 (Mo.App.2008). If the right to foreclose existed, no tort cause of action for wrongful foreclosure can be maintained. Id. Hence, "[a] plaintiff seeking damages in a wrongful foreclosure action must plead and prove that when the foreclosure proceeding was begun, there was no default on its part that would give rise to a right to foreclose." Id.

The Fields admitted they were in default when the foreclosure proceeding commenced. Nevertheless, the Fields argue there are genuine issues of material fact concerning whether Wells Fargo was the legal and beneficial owner of the note secured by the second deed of trust and, therefore, had the right to foreclose.

The Fields raise this claim for the first time on appeal. Generally, we are confined to addressing only those issues properly raised in the motion for summary judgment and the responses thereto. Heffernan v. Reinhold, 73 S.W.3d 659, 663 (Mo.App.2002). Nevertheless, a gratuitous review of the record indicates that there are no genuine issues of material fact regarding whether Wells Fargo was the legal and beneficial owner of the note secured by the second deed of trust.

In their first amended petition, the Fields referred to Wells Fargo as "the mortgagee." In support of their summary judgment motion, Respondents presented an affidavit from an employee of Countrywide Home Loans, who is the subservicer for Impac Funding, who, in turn, is the subservicer for Wells...