Wesley v. Wells Fargo Bank, N.A.

• Decision Date: 13 November 2018
• Docket Number: (Consolidated with WD 81420WD 81565),WD 81408
• Parties: Kenneth D. WESLEY and Quantessal D. Wesley, Appellants-Respondents, v. WELLS FARGO BANK, N.A., et al., Respondent-Appellant, Kozeny & McCubbin, PC., Respondent, Spruce St. Matthew Baptist Church, Respondent.
• Court: Missouri Court of Appeals

569 S.W.3d 436

Kenneth D. WESLEY and Quantessal D. Wesley, Appellants-Respondents,
v.
WELLS FARGO BANK, N.A., et al., Respondent-Appellant,

Kozeny & McCubbin, PC., Respondent,

Spruce St. Matthew Baptist Church, Respondent.

WD 81408
(Consolidated with WD 81420WD 81565)

Missouri Court of Appeals, Western District.

Opinion filed: November 13, 2018
Application for Transfer to Supreme Court Denied December 18, 2018
Application for Transfer Denied April 2, 2019

Jeffery T. Adams, Clinton, for Appellants-Respondent.

James C. Morrow, Kansas City, for Respondent Kozeny & McCubbin, PC and Respondent Spruce St. Matthew Baptist Church.

Derick C. Albers, St. Louis, for Respondent Wells Fargo Bank, N.A.

Before Division Two: Mark D. Pfeiffer, Presiding Judge, Lisa White Hardwick, Judge and Edward R. Ardini, Jr., Judge

EDWARD R. ARDINI, JR., JUDGE

This appeal involves the validity of a real estate foreclosure sale. The Wesleys, plaintiffs below, appeal judgments entered by the Circuit Court of Jackson County granting summary judgment in favor of the defendants Wells Fargo Bank, N.A. ("Wells Fargo") and Kozeny & McCubbin, L.C. ("K&M"). Wells Fargo cross-appeals the denial of its request for attorneys' fees. For the reasons stated below, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND¹

On May 21, 2004, Kenneth Wesley ("Kenneth")² borrowed $58,500 from Wells Fargo to purchase property located at 5417 Brooklyn Avenue in Kansas City, Missouri ("the Property"). Kenneth executed a promissory note ("the Note") in favor of Wells Fargo, and he and his wife, Quantessal, executed a Deed of Trust. The Deed of Trust named Alan South as Trustee and allowed Wells Fargo to remove the Trustee and appoint a Successor Trustee by recorded instrument.

On November 4, 2005, Kenneth entered into a Loan Modification Agreement with Wells Fargo, with the first payment due

569 S.W.3d 439

on January 1, 2006. In July 2006, Wells Fargo sent Kenneth a demand letter after he had failed to make several payments on the Note. On August 21, 2006, Kenneth was notified that he was in default, that he owed $61,398.11, and that all payments under the Note were "accelerated and declared immediately due and payable."

In an Appointment of Successor Trustee dated August 9, 2006, Wells Fargo removed Alan South as Trustee and appointed K&M—a Missouri limited liability company—as Successor Trustee. The Appointment of Successor Trustee was recorded in the Jackson County Recorder’s Office on September 6, 2006.

A foreclosure sale was held on September 22, 2006. K&M provided notice of the sale to the Wesleys, however they did not attend.³ Andrea Fogarty ("Fogarty"), a K&M employee trained as a sales crier, appeared at the foreclosure sale. She publicly announced that she was crying the sale on behalf of K&M, Successor Trustee. She followed the written instructions and information provided by K&M for crying the Wesleys' foreclosure sale. Wells Fargo made a partial credit bid of approximately $49,000, and the Property was sold to Wells Fargo as the highest and best bidder.

On September 22, 2006, K&M issued a Successor Trustee’s Deed stating that K&M had sold the Property to Wells Fargo at the foreclosure sale. The Successor Trustee’s Deed was recorded in the Jackson County Recorder’s Office on September 26, 2006.

Almost ten years later, on September 16, 2016, the Wesleys filed a single-count Petition against Wells Fargo, K&M, and Spruce St. Matthew Baptist Church ("the Church"),⁴ which was subsequently replaced by a First Amended Petition. The Wesleys sought a judgment declaring that no valid foreclosure sale took place, that the Successor Trustee’s Deed was void, and that Kenneth was the legal owner of the Property. The Wesleys alleged that the foreclosure sale and resulting Successor Trustee’s Deed were void because the sale was not conducted by a member or manager of K&M. Wells Fargo and K&M answered by denying the allegations. Wells Fargo additionally filed a three-count counterclaim for Action on the Note (Count I), Declaratory Judgment (Count II), and Equitable Lien (Count III).

The Wesleys, Wells Fargo, and K&M filed cross-motions for summary judgment.⁵ On December 8, 2017, the trial court granted the motions for summary judgment filed by Wells Fargo and K&M. The trial court concluded that the foreclosure sale was valid because K&M called the foreclosure sale through its duly appointed agent and employee, and the presence of a member or manager of K&M was not required to validate the sale. The trial court additionally found that K&M was not a proper party to the action because the Deed of Trust did not vest title in K&M, and the record failed to establish that K&M had any interest in the property. The trial court entered separate judgments,

569 S.W.3d 440

one in favor of Wells Fargo and one in favor of K&M.

On December 12, 2017, the trial court issued an order denying the Wesleys' Motion for Summary Judgment to Set Aside Successor Trustee Deed and Declare Sale Void. The trial court found the Wesleys failed to establish they were entitled to judgment as a matter of law, and it repeated the conclusions of law it had made in the judgments entered in favor of Wells Fargo and K&M. On December 14, 2017, Wells Fargo voluntarily dismissed its counterclaims without prejudice.

Wells Fargo filed a Motion to Amend the Court’s Judgment for the Limited Purpose of Expressly Awarding Wells Fargo’s Attorneys' Fees or, in the Alternative, Motion for Attorneys' Fees ("Motion for Attorneys' Fees"). Wells Fargo sought $43,340.08 in attorneys' fees and $3,766.12 in costs for defending this action, arguing they were entitled to those fees and costs under the Deed of Trust.

On January 16, 2018, the Wesleys filed their notice of appeal. On January 22, 2018, Wells Fargo filed a notice of cross-appeal with respect to its Motion for Attorneys' Fees. On February 27, 2018, the trial court denied Wells Fargo’s Motion for Attorneys' Fees based on the statute of limitations as well as other grounds contained in the Wesleys' opposition to the motion. Wells Fargo filed an amended notice of cross-appeal on March 13, 2018, and the appeals were consolidated.

Additional facts are set forth throughout the opinion as necessary.

JURISDICTION

Before addressing the merits of the appeals, we must determine our jurisdiction. Generally, this Court only has jurisdiction over appeals from final judgments. Neely v. Neely , 169 S.W.3d 577, 579 (Mo. App. W.D. 2005). A judgment is final when it disposes of all issues for all parties in the case and leaves nothing for future determination. First Cmty. Credit Union v. Levison , 395 S.W.3d 571, 576 (Mo. App. E.D. 2013). The content, substance, and effect of the judgment determines finality. Blechle v. Goodyear Tire & Rubber Co. , 28 S.W.3d 484, 486 (Mo. App. E.D. 2000) ; see also Dibben v. Shelter Ins. Co. , 261 S.W.3d 553, 555 (Mo. App. W.D. 2008) (the trial court judgment granting partial summary judgment was a final judgment because it resolved the only claim asserted in the petition). A "final judgment" may be the combined effect of several orders or judgments that, together, dispose of all issues as to all parties and leave nothing for further review. RLI Ins. Co. v. S. Union Co. , 341 S.W.3d 821, 828 (Mo. App. W.D. 2011).

The trial court issued two judgments: one in favor of Wells Fargo and against the Wesleys, and one in favor of K&M and against the Wesleys. The judgments stated that Wells Fargo and K&M were "entitled to judgment as a matter of law as to the claims set forth in Plaintiffs' First Amended Petition." Well Fargo’s voluntary dismissal of its counterclaims disposed of the last issues remaining in the case, and left nothing for further review.⁶

Consequently, the trial court’s judgments are final and we have jurisdiction to hear the appeal and cross-appeal.

569 S.W.3d 441

THE WESLEYS' APPEAL

The Wesleys appeal the judgments sustaining Wells Fargo’s and K&M’s motions for summary judgment.

Standard of Review

Whether a trial court properly granted summary judgment is a question of law that is reviewed de novo. Todd v. Mo. United Sch. Ins. Council , 223 S.W.3d 156, 160 (Mo. banc 2007). "Summary judgment is appropriate when a party establishes that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Id. Where the facts purported to be in dispute are only differing opinions as to the legal effect of the facts, there is no dispute of material fact. Kinney v. Schneider Nat'l Carriers, Inc. , 213 S.W.3d 179, 183 (Mo. App. W.D. 2007). Here, the parties only dispute the legal effect of the facts; there is no genuine issue of material fact that precludes summary judgment.

Analysis

The Wesleys raise two points on appeal. First, the Wesleys argue the trial court erred in finding the foreclosure sale and resulting Successor Trustee’s Deed were valid. The Wesleys assert that a limited liability company serving as a trustee cannot conduct a valid foreclosure sale through a...