La Near v. CitiMortgage, Inc., ED 96719.
| Decision Date | 20 March 2012 |
| Docket Number | No. ED 96719.,ED 96719. |
| Parties | Debry LA NEAR, Appellant, v. CITIMORTGAGE, INC. and Principal Residential Mortgage, Inc., Respondents. |
| Court | Missouri Court of Appeals |
OPINION TEXT STARTS HERE
Debry LaNear, St. Charles, MO, appellant pro se.
Jerome Raskas, Peter H. Love, Ketrina Bakewell, Laura J. Spencer, St. Louis, MO, for respondents.
This case involves a grant of summary judgment in a quiet title action and the bona fide purchaser doctrine.
The facts of this case, as determined by the Respondents' motion for summary judgment, are most easily understood as laid out in a timeline.
30 June 2004: Marlene Schmierbach and Wendy Russ (original owners) execute a General Warranty Deed conveying a certain parcel of property in St. Charles county (the property) to Kirby Warren.
Kirby Warren executes a Quitclaim Deed conveying the property from himself to himself and Debry A. La Near (Appellant).
Kirby Warren executes two promissory notes and two deeds of trust securing the notes in favor of St. Charles Mortgage Company (predecessor in interest to CitiMortgage) and Principal Mortgage. The notes and deeds are signed by Warren only.
1 July 2004: The Quitclaim Deed from Warren to himself and Appellant is recorded.
9 July 2004: These instruments are recorded in the following order:
General Warranty Deed
Deed of Trust in favor of St. Charles Mortgage Company
Quitclaim Deed (rerecorded)
Kirby Warren died on 18 March 2009. No petition for probate of Mr. Warren's estate was ever filed.1
In September 2009, Appellant filed a petition in two counts. Count I was a claim for partition. Count II asked the court to quiet title in Appellant against Respondents. Respondents filed a motion for summary judgment on both counts. In reply, Appellant filed a Response to Respondents' Statement of Uncontroverted Facts accompanied by a supporting affidavit.
Thereafter, the trial court entered judgment striking Appellant's affidavit and portions of her response for failure to comply with Rule 74.04, and granting Respondents' motion for summary judgment. The court found that Respondents' interests were superior to Appellant's and therefore that Appellant's interest in the property is subject to Respondents' deeds of trust. The trial court also dismissed Appellant's claim for partition.
On appeal, Appellant claims the trial court erred in granting Respondents' motion for summary judgment because there remain genuine issues of material fact regarding each party's interest in the property. Appellant also challenges the trial court's dismissal of her partition claim.2
The standard of review of appeals from summary judgment is essentially de novo. [This] Court will review the record in the light most favorable to the party against whom judgment was entered. Summary judgment shall be entered if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.
St. Charles County v. Laclede Gas Co., 356 S.W.3d 137, 139 (Mo. banc 2011) (internal citations omitted).
There are three primary issues for the Court to address in this case. First, did the trial court err in striking portion of Appellant's Response to Statement of Uncontroverted Facts and the supporting affidavit? Second, disregarding the foregoing two documents, were Respondents entitled to judgment as a matter of law? Three, did the trial court err in dismissing Appellant's partition claim?
As to the first issue, in its summary judgment, the trial court found that portions of Appellant's response and affidavit did not conform to the requirements of Rule 74.04, and struck those pleadings accordingly. 3 Appellant's argument for reversible error proceeds on the assumption that had those materials not been struck, there would have been genuine issues of material fact in this case.
Turning first to the affidavit, Rule 74.04 requires that affidavits filed in support of or in opposition to a motion for summary judgment “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Rule 74.04(e). Appellant's affidavit read, in its entirety:
1. My name is Debry La Near.
2. I have reviewed the Defendant's Motion for Summary Judgment and supporting documents.
3. I have reviewed the Response to Defendant's Submitted Statement of Uncontroverted Facts, prepared by my counsel. I agree with the statements made in said pleading and adopt them as my own.
Appellant's affidavit is deficient in at least two respects: 1) it fails to set forth any facts (let alone specific ones), and 2) it does not demonstrate that Appellant is competent to testify. Such deficiencies result in a failure to challenge the other party's allegations of fact. Fowler v. Nutt, 207 S.W.3d 146, 148 (Mo.App. E.D.2006); Kellog v. Kellog, 989 S.W.2d 681, 687 (Mo.App. E.D.1999).
As to the response, Rule 74.04 also requires that denials made in a non-moving party's response must be supported by specific references to discovery, exhibits or affidavits. Rule 74.04(c)(2). The paragraphs struck by the court did not make any reference to anything in the record supporting those denials. As such, the trial court was correct in concluding that the facts asserted in the corresponding paragraphs of Respondent's motion for summary judgment were deemed admitted. Rule 74.04(c)(2); Autry Morlan Chevrolet Cadillac, Inc. v. RJF Agencies, Inc., 332 S.W.3d 184, 191 (Mo.App. S.D.2010).
Due to the overwhelming deficiencies of Appellant's response and “supporting” affidavit, Appellant failed to demonstrate that there were any genuine issues as to those facts set forth in Respondents' pleadings. However, that does not automatically lead to the conclusion that Respondents were entitled to summary judgment. Id. The uncontroverted facts as presented to the trial court must demonstrate that Respondents were entitled to judgment as a matter of law. Id.
Addressing the second issue, Respondents argue that they were entitled to summary judgment as to Count II, the quiet title count, because the uncontroverted facts conclusively demonstrate that they were bona fide purchasers.
In any action to quiet title, the court must adjudicate the respective interests of all parties to the action, regardless of whether the party affirmatively requests adjudication of title. Pitts v. Pitts, 388 S.W.2d 337, 339 (Mo.1965).
A bona fide purchaser takes an interest in property free of prior, unrecorded interests only if three requirements are met. In re Idella M. Fee Revocable Trust, 142 S.W.3d 837, 842 (Mo.App. S.D.2004). “A bona fide purchaser is one who pays a valuable consideration, has no notice of outstanding rights of others, and who acts in good faith.” Johnson v. Stull, 303 S.W.2d 110, 118 (Mo.1957). The real question in this case is whether Respondents had notice of Appellant's claim of ownership prior to the time they obtained their interests.
As outlined above, the following sequence of events, taken from Respondents' motion for summary judgment, are relevant to the resolution of that question.
30 June 2004: Marlene Schmierbach and Wendy Russ (original owners) execute a General Warranty Deed conveying a certain parcel of property in St. Charles county (the property) to Kirby Warren.
Kirby Warren executes a Quitclaim Deed conveying the property from himself to himself and Debry A. La Near (Appellant).
Kirby Warren executes two promissory notes and two deeds of trust securing the notes in favor of St. Charles Mortgage Company (predecessor in interest to CitiMortgage) and Principal Mortgage. The notes and deeds are signed by Warren only.1 July 2004: The Quitclaim Deed from Warren to himself and Appellant is recorded.
9 July 2004: These instruments are recorded in the following order:
General Warranty Deed
Deed of Trust in favor of St. Charles Mortgage Company
Quitclaim Deed (rerecorded)
Based on this record, there remain unresolved genuine issues of material fact necessary to the resolution of this case, specifically when each instrument was delivered. Neither party addressed the issue of delivery in the trial court proceedings.
Generally, a deed takes effect and is effective to transfer title at the time of its delivery from grantor to grantee, not at the time of its execution or recordation—i.e. a party's interest in property arises at the time of delivery, not upon execution or recordation. Hiler v. Cox, 210 Mo. 696, 109 S.W. 679, 682 (Mo.1908); Sando v. Phillips, 319 S.W.2d 648, 652 (Mo.1959). Respondents' motion for summary judgment makes no reference to the dates of delivery of the different instruments. Such information is crucial to the disposition of this case. The date each party's interest arose—the date the party obtained delivery of the document which created their interest—is critical in determining if that party had notice of the other party's interest and should have been presented to the trial court below.
For instance, if all three parties (La Near, St. Charles Mortgage Co., and Principal Mortgage) took delivery of their respective instruments on 30 June, but Appellant did not record her deed until 1 July, then Respondents did not have notice of her adverse claim at the time their interest arose, and they may be entitled to bona fide purchaser status. If on the other hand, Respondents did not take delivery until 9 July, then they did have notice of Appellant's adverse claim recorded eight days before their interest arose, and cannot be found to be bona fide purchasers.
It is of no significance as to the issue of notice that the Warranty Deed was not recorded until after the Quitclaim Deed. If the Respondents' interest arose after 1 July, they are charged with notice of Appellant's claim as of...
To continue reading
Request your trial
-
Kan. City Area Transp. Auth. v. Donovan
...fee simple." Webster Oil Co. v. McLean Hotels, Inc. , 878 S.W.2d 892, 894 (Mo. App. S.D. 1994) ; see also La Near v. CitiMortgage, Inc. , 364 S.W.3d 236, 241 n.6 (Mo. App. E.D. 2012). "This is done, according to Missouri statutes, by use of the words ‘grant, bargain and sell’ in the grantin......
-
La Near v. CitiMortgage, Inc.
...in favor of Respondents regarding La Near's request to quiet title.La Near appealed the judgment to this Court. La Near v. CitiMortgage, Inc., 364 S.W.3d 236 (Mo.App.E.D.2012) (La Near I ). This Court noted that the following three events occurred on June 30, 2004:(1) the original owners of......