Sloss v. Gerstner, WD 60966.

• Decision Date: 11 March 2003
• Docket Number: No. WD 61001.,No. WD 60966.,WD 60966.,WD 61001.
• Citation: 98 S.W.3d 893
• Parties: Richard D. SLOSS, Appellant-Respondent, v. Connie S. GERSTNER, et al., Respondents-Appellants.
• Court: Missouri Court of Appeals

Page 893

98 S.W.3d 893

Richard D. SLOSS, Appellant-Respondent, v. Connie S. GERSTNER, et al., Respondents-Appellants.

No. WD 60966.

No. WD 61001.

Missouri Court of Appeals, Western District.

March 11, 2003.

William M. Modrcin, Kansas City, MO, for Appellant-Respondent.

Christopher R. Williams, Kansas City, MO, for Respondents-Appellants.

Before EDWIN H. SMITH, P.J., and BRECKENRIDGE and HARDWICK, JJ.

EDWIN H. SMITH, Presiding Judge.

Richard D. Sloss appeals the summary judgment of the Circuit Court of Jackson County for the respondents, Connie S. Gerstner, Litton Loan Servicing, L.P. (Litton), and Pledge Property II, L.L.C. (Pledge), on the appellant's petition for wrongful foreclosure seeking to set aside the non-judicial foreclosure sale of his home. The respondents cross-appeal the trial court's sanctions for their failure to provide to the appellant certain discovery.

Although designated as one point, the appellant actually raises several points on appeal. However, we will address and discuss only one in that it is dispositive of his appeal. In that regard, the appellant claims that the trial court erred in entering summary judgment in favor of the respondents on his petition for wrongful foreclosure because on the alleged undisputed facts asserted in their motion they were not entitled to judgment as a matter of law. In the respondents' sole point on cross-appeal, they claim that "[t]he circuit court erred in granting sanctions for perceived discovery abuses in that appellant failed to establish that he was prejudiced because of respondents' alleged failure to produce the discovery requested and the trial court abused its discretion in imposing sanctions with respect to alleged discovery improprieties."

We reverse and remand in part, and dismiss in part.

Facts

In October 1997, the appellant refinanced his home located at 201 West 54th Street, Kansas City, Missouri. As part of the refinancing, the appellant executed a deed of trust with power of sale, to Hearthside Lending Corporation (Hearthside), a Kansas corporation, to secure the refinancing note in the amount of $249,600. Anthony A. Stein was named as the trustee in the deed of trust. Hearthside subsequently assigned the note and deed of trust to Litton Loan Servicing, L.P., a Delaware limited partnership doing business in Missouri.

The appellant made payments on the note until sometime in early 1999, when he apparently missed several monthly payments. On June 1, 1999, Litton notified the appellant through its attorney, Alan South, that foreclosure proceedings had commenced against the appellant for nonpayment. However, this foreclosure action was subsequently terminated after the appellant made payments on June 29, 1999, to satisfy the amount owed on the monthly payments he had missed. Thereafter, on November 12, 1999, South sent a letter by certified mail to him, notifying him that he was again in default for failure to pay his August 1999 payment, that the maturity date of the note had been accelerated, and that foreclosure proceedings would commence as of the date of the letter. That letter was subsequently returned to South's law office as being unclaimed by the appellant. Foreclosure proceedings commenced on the appellant's home, and notice of the foreclosure and trustee's sale of the appellant's home was published in The Pulse Legal Publication from November 18, 1999, through December 16, 1999. Connie S. Gerstner, an office manager for South's law office, was named as the successor trustee at that time.

A non-judicial sale of the appellant's property was conducted by Gerstner on the steps of the Jackson County Courthouse on December 16, 1999. The property was sold to the only bidder, Pledge Property II, L.L.C., a subsidiary of Litton, who bought the property for $224,400. Pursuant to the sale, Gerstner issued a trustee's deed to Pledge. The appellant was subsequently evicted from the property.

On February 14, 2000, the appellant filed in the Circuit Court of Jackson County a "Petition to Set Aside Trustee's Deed" against the respondents, Gerstner, Litton, and Pledge. In his petition, the appellant alleged that the respondents wrongfully foreclosed on his home because: (1) he was not in default on the note; (2) the respondents failed to provide him with proper notice of his alleged default and the acceleration of the maturity date of the note; and (3) he was not provided with proper notice of the foreclosure sale of his home. In his petition, the appellant requested that the trial court set aside the sale of his property and the trustee's deed issued pursuant to the sale. Each of the respondents filed a separate answer on April 7, 2000, denying the appellant's claim.

On April 17, 2001, the respondents filed a joint motion for summary judgment and suggestions in support thereof, claiming that the undisputed facts alleged demonstrated that the appellant was given proper notice of his default on the note, the acceleration of the maturity date of the note, and the foreclosure sale of his property. On May 23, 2001, the appellant filed his response to the respondents' motion for summary judgment.

The trial court took up and heard the respondents' motion for summary judgment on June 14, 2001. At the hearing, the respondents filed their "Reply Suggestions in Support of [Respondent's] Motion for Summary Judgment," to which they attached, inter alia, the trustee's deed issued pursuant to the foreclosure sale and an affidavit from a Litton employee who stated that he mailed a letter to the appellant on September 22, 1999, informing him that he was in default on the note and that the maturity date of the note would be accelerated if such default was not cured within thirty days. In addition, at the hearing the appellant filed his "Supplemental Suggestions in Opposition to [Respondents'] Motion for Summary Judgment," to which he attached Gerstner's deposition and a cashed check which allegedly indicated that he made his August payment on the note. On December 21, 2001, the trial court issued its order granting summary judgment in favor of the respondents.

This appeal followed.

Standard of Review

In reviewing the grant of summary judgment:

[o]ur review is essentially de novo. The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially. The propriety of summary judgment is purely an issue of law. As the trial court's judgment is founded on the record submitted and the law, an appellate court need not defer to the trial court's order granting summary judgment.

ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993) (citations omitted). Summary judgment will be upheld on appeal if: (1) there is no genuine dispute of material fact, and (2) the movant is entitled to judgment as a matter of law. Id. at 380.

When considering appeals from summary judgments, the [c]ourt will review the record in the light most favorable to the party against whom judgment was entered. Facts set forth by affidavit or otherwise in support of a party's motion are taken as true unless contradicted by the non-moving party's response to the summary judgment motion. We accord the non-movant the benefit of all reasonable inferences from the record.

Id. at 376 (citations omitted).

I.

The appellant claims that the trial court erred in entering summary judgment in favor of the respondents on his petition for wrongful foreclosure because on the alleged undisputed facts asserted in their motion they were not entitled to judgment as a matter of law. Specifically, he claims, inter alia, that the respondents, in order to make a prima facie case for summary judgment, were required, but failed, to plead undisputed facts which negated his claim that he was not in default of the promissory note, which was secured by the deed of trust under which the respondents foreclosed and sold his residence. We agree.

To be entitled to summary judgment under Rule 74.04,¹ the movant must establish that (1) there is no genuine dispute as to the material facts on which he relies for summary judgment, and that (2) based on these undisputed facts, he is entitled to judgment as a matter of law. ITT Commercial Fin., 854 S.W.2d at 380. If the movant is the defending party, as is the case here, he or she can establish a prima facie case for summary judgment by one or more of the following three means: (1) showing facts that negate any one of the claimant's elements facts; (2) showing that the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant's elements; or, (3) showing that there is no genuine dispute as to the existence of each of the facts necessary to support movant's properly pleaded affirmative defense. Id. at 381. "Regardless of which of these three means is employed by the `defending party,' each establishes a right to judgment as a matter of law." Id.

There is no single recognized theory for recovery for wrongful foreclosure. Spires v. Lawless, 493 S.W.2d 65, 71 (Mo.App. 1973). As stated in Spires:

[r]ecovery for wrongful foreclosure has been allowed in such widely varying circumstances that it is doubtful that any single theory of recovery is applicable to every case which has been called an `action for wrongful foreclosure.' The best that can be said is that the authorities cannot be fully reconciled, and an examination of the topically collated cases to discover the basis of legal liability in such actions obscures as much as it clarifies.

Id. Thus, recovery for wrongful foreclosure has been allowed in various circumstances. See Graham v. Oliver, 659 S.W.2d 601, 603 (Mo.App.1983) (the foreclosing party did not hold title to the secured note); Verdon...