Ndegwa v. KSSO, LLC
| Decision Date | 11 October 2011 |
| Docket Number | No. ED96315,ED96315 |
| Parties | CATHERINE NDEGWA and CATHERINE NDEGWA and ANALE MREMA, as legal co-guardians for JOHN MREMA, Plaintiffs/Respondents, v. KSSO, LLC, Defendant/Appellant, and INDYMAC BANK, INTEGRITY LAND TITLE COMPANY, INC., JOHN FRIGANZA, Collector of Revenue for St. Louis County, Missouri, and ST. LOUIS COUNTY, Defendants. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of St. Louis County
Honorable Robert S. Cohen
Introduction
KSSO, LLC (Appellant) appeals from the trial court's Order and Judgment granting partial summary judgment to Catherine Ndegwa (Ndegwa) and Ndegwa and Anale Mrema (Anale), as legal co-guardians for John Mrema (Mrema) (collectively Respondents),1 on Count III of Respondents' first amended petition, and quieting title ofcertain property in Ndegwa as Trustee of the Mrema Family Revocable Trust. We affirm.
Factual and Procedural Background
This case involves the property located at 10960 Warwickhall, Bridgeton, Missouri (the Property), which is improved with a multi-family dwelling containing four rental units and was the subject of a sale for delinquent taxes at which Appellant was the successful bidder.
On August 7, 1997, Mrema and Ndegwa, a married couple, acquired the Property by General Warranty Deed. They recorded the General Warranty Deed on August 19, 1997. The Property is legally described as "Lot 253 of Westhaven Plat Eight, according to the plat thereof recorded in Plat Book 108 Page 42 of the St. Louis County Records."
On January 22, 2004, Mrema and Ndegwa obtained a $98,000.00 loan on the Property from IndyMac Bank,2 evidenced by a Promissory Note (Note) and secured by a Deed of Trust (IndyMac Deed) recorded on January 29, 2004. The IndyMac Deed names Mrema and Ndegwa as Borrowers, Integrity Land Title as Trustee, and IndyMac Bank as Lender, but describes the Property as being Lot 252, not 253, of Westhaven Plat Eight. The IndyMac Deed does contain the street address of the Property as being 10960 Warwickhall Drive, Bridgeton, Missouri.
Respondents did not pay real estate taxes on the Property for the tax years 2004, 2005 and 2006.
On August 27, 2007, Respondent John Friganza, the Collector of Revenue of St. Louis County (the Collector), offered for sale a Tax Sale Certificate of Purchase on theProperty (Locator Number 13M411453; Lot 253 Westhaven Plat Eight), for the delinquent real estate taxes. Appellant acquired the Tax Sale Certificate of Purchase in exchange for $26,100.00, said total including $9,242.00 for delinquent taxes, interest and penalties, and $16,858.00 as surplus.
On February 15, 2008, Mrema and Ndegwa conveyed the Property to Mrema and Ndegwa as Trustees of the Mrema Family Revocable Trust. This conveyance was evidenced by Quit Claim Deed recorded on February 20, 2008.
On May 1, 2008, Appellant procured a title examination of Lot 253 by Title Professionals LLC, which did not show the IndyMac Deed as an encumbrance against Lot 253. On September 4, 2008, Title Professionals LLC updated its title examination of Lot 253 of Westhaven Plat Eight, said update again not showing the IndyMac Deed as an encumbrance against Lot 253.
By certified mail dated September 15, 2008, Appellant sent Mrema and Ndegwa letters setting out notice of their right to redeem "10960 Warwickhall Dr Bridgeton MO 63044 in St. Louis County, Missouri with locator or parcel number 13M411453," to-wit, in part:
Enclosed with this letter was a copy of Section 140.4053 with the following wording bracketed:
Once the purchaser has notified the county collector by affidavit that proper notice has been given, anyone with a publicly recorded deed of trust, mortgage, lease, lien or claim upon the property shall have ninety days to redeem said property or be forever barred from redeeming said property.
Appellant did not send a notice to IndyMac Bank.
On January 9, 2009, the Collector conveyed its Deed to the Property to Appellant, said Deed recorded February 4, 2009.
On August 24, 2009, Respondents filed their first amended petition against Appellant, the Collector, IndyMac Bank, Integrity Land Title Co., and St. Louis County, alleging the following:
Count I for declaratory judgment that Section 140.170 is facially unconstitutional in violation of the Due Process Clauses of the Missouri and United States Constitutions;
Count II for declaratory judgment that Section 140.170 is unconstitutional under the Due Process Clauses of the Missouri and United States Constitutions as applied in this matter;
Count III for quiet title to Lot 253 of Westhaven Plat Eight;
Count IV for quiet title to Lot 252 of Westhaven Plat Eight;
Count V for quiet title to Lot 253 of Westhaven Plat Eight;
Count VI for preliminary and permanent injunction;
Count VII for ejectment to obtain possession of Lot 253 of Westhaven Plat Eight;
Count VIII for tortious interference with contract;
Count IX for estoppel;
Count X for negligence against IndyMac Bank;
Count XI for breach of fiduciary duty directed against IndyMac Bank. Respondents filed a motion for partial summary judgment as to Count III.
Appellant filed Counterclaims and Cross-claims against Respondents and co-defendants, respectively. Appellant filed a motion for partial summary judgment as to Count I of its Counterclaims and Cross-claims, which asked the court to quiet title to Lot 253 in its favor.
On January 11, 2011, the trial court entered its Order and Judgment granting Respondents' motion and denying Appellant's. The trial court adjudged that "the Tax Sale of the Property is set aside; the Collector's Deed is void and of no force and effect; and [Appellant] has lost and is divested by this Judgment of all right, title and interest inthe Property commonly known as 10960 Warwickhall Avenue, in the County of St. Louis, and described as follows:
Lot 253 of Westhaven Plat Eight, according to the plat thereof recorded in Plat Book 108 Page 42 of the St. Louis County Records."
The trial court then quieted fee simple title to the Property "solely in Catherine Ndegwa, as Trustee of the Mrema Family Revocable Trust dated February 15, 2008, subject only to such secured interest as has been granted by Ndegwa and Mrema." The trial court found that pursuant to Rule 74.01(b),4 there was no just reason for delay with respect to the matters raised in Count III of Respondents' first amended petition and thus its Order and Judgment was final with respect to those matters. This appeal follows.
Points on Appeal
In its first point, Appellant contends the trial court erred in granting partial summary judgment on Count III of Respondents' petition on the ground that the Section 140.405 notice letter dated September 15, 2008 sent by Appellant was not mailed at least 90 days prior to the expiration of one year from the August 27, 2007 tax sale (i.e., August 27, 2008) because Hobson v. Elmer, 163 S.W.2d 1020 (Mo. 1942) held that the one-year redemption period in Section 140.340.1 actually extends beyond one year, until the time the tax sale purchaser is authorized to acquire a collector's deed, but not beyond two years.
In its second point, Appellant claims the trial court erred in granting Respondents' motion for partial summary judgment on Count III of their amended petition on the ground that Appellant's September 15, 2008 Section 140.405 notices failed to correctlyinform Respondents that their redemption period ended on August 27, 2008, one year from the date of the tax sale because (1) there is no fixed one-year redemption period ending on August 27, 2008, as set out in Point I; (2) there are exceptions to this fixed one-year period for infants, disabled and incapacitated persons, as well as for people claiming bankruptcy; (3) tax sale purchasers cannot give advance notice of the time when they may be authorized to acquire a collector's deed because that time varies; (4) neither Section 140.405 nor due process requires a tax sale purchaser to provide advance notice of the time limits applicable for redemption; and (5) the notice letters Appellant sent Respondents informed them of their right to redeem, which is all that Section 140.405 requires.
In its third point, Appellant asserts the trial court erred in granting partial summary judgment on Count III of Respondents' petition on the ground that Appellant failed to provide IndyMac Bank with notice in compliance with Section 140.405, because IndyMac Bank was...
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