Mo. Bankers Ass'n, Inc. v. St. Louis Cnty.

• Decision Date: 15 October 2013
• Docket Number: No. ED99333,ED99333
• Parties: MISSOURI BANKERS ASSOCIATION, INC., AND JONESBURG STATE BANK, Plaintiffs/Appellants, v. ST. LOUIS COUNTY, MISSOURI, AND CHARLIE A. DOOLEY, Defendants/Respondents.
• Court: Missouri Court of Appeals

MISSOURI BANKERS ASSOCIATION, INC., AND JONESBURG STATE BANK, Plaintiffs/Appellants, v. ST. LOUIS COUNTY, MISSOURI, AND CHARLIE A. DOOLEY, Defendants/Respondents.

No. ED99333

Missouri Court of Appeals Eastern District DIVISION TWO

FILED: October 15, 2013

Appeal from the Circuit Court

of St. Louis County

12SL-CC03659

Honorable Brenda S. Loftin

OPINION

Missouri Bankers Association, Inc., and Jonesburg State Bank (collectively Bankers) appeal from the trial court's grant of summary judgment in favor of St. Louis County and Charlie A. Dooley (collectively County) finding that the County's foreclosure mediation program was a valid exercise of the County's police power and did not conflict with Missouri state law. We dismiss as moot and remand to the trial court to vacate the judgment.

Factual and Procedural History

On August 29, 2012, the County passed and began implementation of the County's "Mortgage Foreclosure Intervention Code" (Ordinance) Ordinance,¹ which required that lenders provide residential borrowers an opportunity to mediate prior to foreclosure on the borrower's home. Upon completion of the mediation process, the Ordinance states that the lender receives a Certificate of Compliance, which is then filed with the St. Louis County Assessor, along with thefiling of a conveyance of the foreclosed property with the St. Louis County Recorder of Deeds. Failure to comply with the Ordinance can result in a fine up to $1,000.

As part of the mediation process, the lender must provide written notice to a homeowner of the process and of the homeowner's rights to request mediation within twenty-one days. The lender is required to provide a payment of $100 to the mediation coordinator, who is chosen to manage and oversee the mediation program. If the homeowner chooses to proceed with mediation, it must be scheduled within sixty days of receiving the homeowner's notice of intent to participate. At that time, the lender must submit a fee of $350 to the mediation coordinator. If the lender and homeowner are able to resolve the foreclosure prior to mediation and notify the mediation coordinator of the resolution three days prior to the scheduled mediation, the lender is refunded the $350.

If the mediation process results in settlement, the mediation coordinator issues to the lender a Certificate of Compliance within one business day. If there is no settlement, however, the lender is deemed to have satisfied the requirements of the Ordinance so long as the lender makes a "good faith" effort to settle with the homeowner. If the homeowner decides to forego the mediation process altogether, the lender is also deemed to have satisfied the requirements of the Ordinance.

On September 22, 2012, Bankers filed a motion to temporarily restrain enforcement of the Ordinance. The trial court granted the motion and enforcement was stayed pending the parties' motions for summary judgment regarding a permanent injunction. On November 14, 2012, the trial court granted the County's motion for summary judgment and dissolved the temporary restraining order. Bankers appealed.

On January 18, 2013, this Court granted Bankers' motion to enjoin enforcement of the Ordinance pending resolution of this appeal. During the pendency of this appeal, the Missouri legislature passed Section 443.454 RSMo,² which was added to the state's mortgage foreclosure laws. This Court requested that the parties provide additional briefs discussing the impact of the new legislation, including the validity of the Ordinance, in light of various statutory provisions pertaining to foreclosures and loans generally. We now consider the issues contained in these new submissions together with those in the original briefs.

Discussion

As a threshold matter, we must determine whether a controversy has been rendered moot prior to undertaking appellate review. Adams v. City of Manchester, 242 S.W.3d 418, 428 (Mo. App. E.D. 2007). "A cause of action is moot when the question presented for decision seeks a judgment upon some matter which, if the judgment was rendered, would not have any practical effect upon any then existing controversy." Reynolds v. City of Valley Park, 254 S.W.3d 264, 266 (Mo. App. E.D. 2008) (quoting Precision Invs., L.L.C. v. Cornerstone Propane, L.P., 220 S.W.3d 301, 304 (Mo. banc 2007)). Stated differently, "[w]hen there is an occurrence that makes a court's decision unnecessary or makes granting any relief by the court impossible, then the issue is moot and should not be addressed." State ex rel. Goodman v. St. Louis Bd. of Police Comm'rs, 181 S.W.3d 156, 160 (Mo. App. E.D. 2005). Mootness implicates justiciability, and therefore, we may dismiss a case for mootness sua sponte. In re Estate of Washington, 277 S.W.3d 777, 780 (Mo. App. E.D. 2009).

Section 443.454, "Real estate loans secured by security instruments made pursuant to state and federal law only--local laws prohibited from affecting," reads as follows:

The enforcement and servicing of real estate loans secured by mortgage or deed of trust or other security instrument shall be pursuant only to state and federal law and no local law or ordinance may add to, change, delay enforcement, or interfere with, any loan agreement, security instrument, mortgage or deed of trust. No local law or ordinance may add, change, or delay any rights or obligations or impose fees or taxes of any kind or require payment of fees to any government contractor related to any real estate loan agreement, mortgage or deed of trust, other security instrument, or affect the enforcement and servicing thereof.

Here, the County has abandoned its enforcement efforts and will not resume them in light of the enactment of Section 443.454. On August 5, 2013, the County filed a supplemental legal brief that stated:

The General Assembly having expressly prohibited local governments from enforcing the exact type of regulation that had been enacted by St. Louis County, the Mortgage Foreclosure Intervention Code at issue is clearly inconsistent with the newly stated policy of the State and cannot be enforced by St. Louis County. The dispute pending before the Court concerning consistency with other statutes is therefore moot and subject to dismissal, insofar as "[a] case is moot where an event occurs that makes the court's decision unnecessary" and "Missouri courts do not decide moot issues." Carlisle v. Carlisle, 277 S.W.3d 801, 802 (Mo. App. 2009) (citations omitted).

"As a general rule, moot cases must be dismissed." Warlick v. Warlick, 294 S.W.3d 128, 130 (Mo. App. 2009) (citations omitted). Although the Court has discretion to decide a case if it so chooses once the case has been argued and submitted, . . . there is no reason to do so herein. The County has abandoned its enforcement efforts and will not resume them in light of the General Assembly's unfortunate decision to affirmatively withdraw this opportunity from Missouri residents. SeeState ex rel.Glendinning Companies of Connecticut, Inc. v. Letz 591 S.W.2d 92, 96 (Mo. App. 1979) (suggesting that construction of extant administrative regulation could be moot by virtue of a newly enacted state statute nullifying it, had the regulation at issue in fact been nullified by the statute). Accordingly, the case should be dismissed and remanded to the Circuit Court for vacation of the judgment and dismissal of the lawsuit.

Based on the County's concession, we find it unnecessary to consider this controversy.

Conclusion

Section 443.454 expressly prohibits local governments from enforcing the type of regulation that has been enacted by the County. As a result of this conflict with Section 443.454, the County conceded that it will not enforce the Ordinance and admits that the controversy ismoot. We agree with the County's assessment that Section 443.454 conflicts with the Ordinance. We dismiss the case as moot and remand to the trial court to vacate the underlying judgment.

____________

Mary K. Hoff, Judge

Kathianne Knaup Crane, Senior Judge, concurs.

Lisa S. Van Amburg, Judge, dissents in separate opinion.

MISSOURI BANKERS ASSOCIATION, INC., AND JONESBURG STATE BANK, Plaintiffs/Appellants,

vs.

ST. LOUIS COUNTY, MISSOURI, AND CHARLIE A. DOOLEY, Defendants/Respondents.

No. ED99333

Appeal from the Circuit Court of

St. Louis County

Honorable Brenda Stith Loftin

DISSENT

I respectfully dissent. Section 433.454, R.S.Mo. (effective Aug. 28, 2013), is inapplicable to County, because the Mediation Program is a valid exercise of County's broad authority to regulate municipal services and functions under Missouri Constitution article VI, section 18(c). County makes no claim that it will repeal the ordinance, and remains free to resume enforcement at any time. Therefore, this case is not moot.

DISCUSSION

The charter county system of government under article VI, section 18(c), of the Missouri Constitution was created in recognition of the fact that urgent local problems "require effective uniform county solutions, without the delay of obtaining approval from the state legislature." See Rex V. Gump, Local Government—County Home Rule and the1970 Missouri Constitutional Amendment, 41 Mo. L. Rev. 49, 49 (1976). The foreclosure epidemic that swept through St. Louis County is just such an urgent local problem. The summary judgment record herein reflects that in 2010, the peak year of the national foreclosure crisis, over 4,500 St. Louis County residents lost their homes to foreclosure. This number was more than a four-fold increase from the historical norm. Many neighborhoods saw in excess of eight foreclosure-related sales for each comparable owner-initiated sale, and foreclosed houses were commonly left abandoned and in poor condition. Property values in St. Louis County were falling, as was tax revenue used to support local government services such as school and fire districts. In response, Saint Louis County created a mediation program in order to encourage mortgage lenders and defaulting homeowners to explore negotiated...