Jerry Washington, et al v. Countrywide Home Loans, Inc.

Filing

OPINION FILED - THE COURT: Duane Benton, C. Arlen Beam and Bobby E. Shepherd AUTHORING JUDGE:Duane Benton (PUBLISHED) [4134129] [12-3428]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 12-3428
___________________________
Jerry W. Washington; Golda M. Washington
lllllllllllllllllllll Plaintiffs - Appellants
v.
Countrywide Home Loans, Inc.
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: November 21, 2013
Filed: March 17, 2014
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Before BENTON, BEAM, and SHEPHERD, Circuit Judges.
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BENTON, Circuit Judge.
Jerry W. and Golda M. Washington sued Countrywide Home Loans, Inc.,
alleging violation of the Missouri Second Mortgage Loan Act (MSMLA). The district
court1 dismissed the Washingtons’ claims as barred by the three-year statute of

1

The Honorable Fernando J. Gaitan, Chief Judge, United States District Court
for the Western District of Missouri.

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limitations of § 516.130(2) RSMo. The Washingtons appeal, invoking the six-year
statute of limitations of § 516.420 RSMo or, alternatively, the application of the
“continuing or repeated wrong” exception. Having jurisdiction under 28 U.S.C. §
1291, this court affirms.
I.
The Washingtons are the named plaintiffs and proposed representatives of a
putative class of Missouri homeowners who obtained residential second-mortgage
loans from Countrywide. The Washingtons’ loan proceeds were disbursed in April
2005, when interest began accruing. Countrywide assessed four additional charges
against the Washingtons’ disbursement: (1) a $690 loan discount, (2) a $100
settlement/closing fee, (3) a $60 document processing/delivery fee, and (4) $37.80 in
prepaid interest. After an audit, Countrywide determined that the first two charges
should not have been assessed and wired $790 to the title company to be included in
the loan disbursement.
The Washingtons sued in state court on May 6, 2008, alleging that the four
additional charges violate the MSMLA, §§ 408.231 to 408.241 RSMo. Countrywide
removed the case to federal court. See 28 U.S.C. §§ 1332(d), 1453. The Washingtons
seek to recover the charges plus all interest paid on the loans, relying on §§ 408.236
and 408.562 RSMo. See Washington v. Countrywide Home Loans, Inc., 655 F.3d
869 (8th Cir. 2011).
The district court found that the accrual date of the Washingtons’ cause of
action was April 21, 2005. Because this suit was filed over three years later, the court
dismissed the Washingtons’ claims as time barred by § 516.130(2) RSMo. The
district court relied on Rashaw v. United Consumers Credit Union, 685 F.3d 739, 744
(8th Cir. 2012), cert. denied, 133 S. Ct. 1250 (2013). The Washingtons argued for the
six-year statute of limitations of § 516.420 RSMo. They relied on Schwartz v. Bann-2-

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Cor Mortgage, 197 S.W.3d 168, 178 (Mo. App. 2006), which Rashaw rejected as not
stating the law declared by the Supreme Court of Missouri. The Washingtons appeal.
This court reviews de novo a district court’s determination of state law, applying the
same standard as the district court. Salve Regina Coll. v. Russell, 499 U.S. 225, 231
(1991).
Under § 516.130(2) RSMo, an “action upon a statute for a penalty or forfeiture,
where the action is given to the party aggrieved” must be commenced within three
years. However, actions for penalties or forfeitures against “moneyed corporations”
face a six-year statute of limitations under § 516.420 RSMo. In Schwartz, the
Missouri Court of Appeals applied this six-year statute of limitations to an MSMLA
action, reasoning that § 516.420 is the “more specific statute.” Schwartz, 197 S.W.3d
at 178.
This court disagreed in Rashaw. Reviewing the statutory history and cases by
the Supreme Court of Missouri, this court concluded:
The [Supreme Court of Missouri] might decide that Schwartz provides
the best interpretation of the current § 516.420. But Schwartz ignored
both relevant legislative history and what should have been controlling
(though dated) Supreme Court precedents. . . . We conclude the
[Supreme Court of Missouri] would . . . hold that § 516.420 is limited to
penal statutes and does not apply to civil actions to recover penalties and
forfeitures governed by § 516.130(2).
Rashaw, 685 F.3d at 744.
“When determining the scope of Missouri law, we are bound by the decisions
of the Supreme Court of Missouri. If the Supreme Court of Missouri has not addressed
an issue, we must predict how the court would rule, and we follow decisions from the
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intermediate state courts when they are the best evidence of Missouri law.” Eubank
v. Kansas City Power & Light Co., 626 F.3d 424, 427 (8th Cir. 2010). Decisions
from the Missouri Court of Appeals may be the best evidence of Missouri law if the
Supreme Court of Missouri has not spoken. Washington, 655 F.3d at 873. Since
Schwartz ignored controlling precedent by the Supreme Court of Missouri as well as
pertinent statutory history, Schwartz is not the best evidence of Missouri law.
Rashaw, 685 F.3d at 741-44.
Absent an intervening opinion by a Missouri court,2 Rashaw controls this
appeal. The Washingtons attack Rashaw’s interpretation of Missouri case law and
statutory history, but it “is a cardinal rule in our circuit that one panel is bound by the
decision of a prior panel.” Mader v. United States, 654 F.3d 794, 800 (8th Cir. 2011)
(en banc). The Washingtons assert that Schwartz should be treated as a prior decision
of this court because it was removed to the district court after some plaintiffs
(including the Schwartzes) settled. See Wong v. Bann-Cor Mortg., 918 F. Supp. 2d
941, 943 n.1 (W.D. Mo. 2013); Wong v. Bann-Cor Mortg., 878 F. Supp. 2d 989, 991
n.2 (W.D. Mo. 2012). The Washingtons believe that Schwartz became the “law of the
case” after removal and thus has the same precedential value as an Eighth Circuit
opinion. “‘Law of the case’ is a policy of deference under which ‘a court should not
reopen issues decided in earlier stages of the same litigation.’” In re Raynor, 617
F.3d 1065, 1068 (8th Cir. 2010), quoting Agostini v. Felton, 521 U.S. 203, 236
(1997). To the extent Schwartz is the “law of the case” after removal, it applies only
in that litigation and has no precedential value here. See id.

2

This court asked the Supreme Court of Missouri to consider the following
certified question: “Does § 516.130(2) or § 516.420 control plaintiffs’ actions against
a corporate mortgage lender under the Missouri Second Mortgage Loan Act?” The
Supreme Court of Missouri declined the request, adhering to Grantham v. Missouri
Department of Corrections, No. 72576, 1990 WL 602159, at *1 (Mo. banc July 13,
1990).
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The MSMLA is subject to the limitations period of § 516.130(2). Rashaw, 685
F.3d at 744. The district court did not err in applying the three-year statute of
limitations.
II.
The Washingtons argue for a “continuing or repeated wrong” exception to the
three-year statute of limitations. This court reviews de novo a district court’s
determination of state law, applying the same standard as the district court. Salve
Regina Coll., 499 U.S. at 231.
The MSMLA says, “No charge other than that permitted by section 408.232
[contract interest] shall be directly or indirectly charged, contracted for or received in
connection with any second mortgage loan, except as provided in [the list of charges
in] this section [408.233].” § 408.233.1 RSMo. Additionally, “Any person violating
the provisions of [the MSMLA] shall be barred from recovery of any interest on the
contract.” § 408.236 RSMo. The Washingtons correctly interpret these sections to
mean that an MSMLA violation occurred each time Countrywide “charged” or
“received” a monthly payment. Washington, 655 F.3d at 875 (collection of prepaid
interest “was an additional violation of the statute”).
Under Missouri law, the statute of limitations does not begin “when the wrong
is done” or the “breach of contract or duty occurs.” § 516.100 RSMo. Rather, the
statute of limitations begins when the “damage resulting therefrom is sustained and
is capable of ascertainment.” Id. When the fact of damage is capable of
ascertainment, the statute of limitations is put in motion, even if the amount of damage
is unascertained. Davis v. Laclede Gas Co., 603 S.W.2d 554, 556 (Mo. banc 1980)
(“[I]f the wrong done is of such a character that it may be said that all of the damages,
past and future, are capable of ascertainment in a single action so that the entire
damage accrues in the first instance, the statute of limitation begins to run from that
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time.”); M & D Enters., Inc. v. Wolff, 923 S.W.2d 389, 394 (Mo. App. 1996) (“When
the fact of damage becomes capable of ascertainment, the statute of limitations is put
in motion.”). “Damage is capable of ascertainment when it can be discovered or is
made known, even if its extent remains unknown.” D’Arcy & Assoc’s v. K.P.M.G.
Peat Marwick, L.L.P., 129 S.W.3d 25, 29 (Mo. App. 2004).
The unlawful charges were listed on the HUD-1 settlement statement provided
to the Washingtons before they signed the contract. The Washingtons also then
learned their payment schedule. “[A]ll of the damages, past and future” were known
to them when they signed the contract. See Davis, 603 S.W.2d at 556. Even if
additional violations of the statute later occurred, the Washingtons could have
maintained their entire MSMLA action—recovering all unlawful fees and barring all
interest—immediately after closing. M & D Enters., 923 S.W.2d at 394 (“The test is
when the plaintiff could have first successfully maintained the action.”). The “entire
damage” to the Washingtons was capable of ascertainment “in a single action” at that
time. Davis, 603 S.W.2d at 556. The “continuing or repeated wrong” exception does
not apply in this case.
The Washingtons rely on Vogel v. A.G. Edwards & Sons, Inc., 801 S.W.2d 746
(Mo. App. 1990). Investors sued to recover commissions their broker received by
“churning” an investment account. Id. at 748. The Missouri Court of Appeals applied
the “continuing or repeated wrong” exception, letting the investors recover “any
damages they sustained from subsequent trades occurring within the [limitations
period] immediately preceding the date the petition was filed.” Id. at 755-56. The
Vogel case is irrelevant here. “Separate” and “individual” trades from churning are
“fresh injuries” not capable of ascertainment until made, unlike payments on an
unlawful contract. Id.

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The district court properly declined to apply a “continuing or repeated wrong”
exception in this case.
*******
The judgment is affirmed.
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