Savoil King, et al v. Homeward Residential, Inc., et al

Filing

PER CURIAM OPINION FILED - THE COURT: Raymond W. Gruender, Morris S. Arnold and Bobby E. Shepherd (UNPUBLISHED) [4403934] [15-2483]

United States Court of Appeals
For the Eighth Circuit
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No. 15-2483
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Savoil King, for themselves and all Arkansas residents similarly situated; Dorothy
King, for themselves and all Arkansas residents similarly situated
lllllllllllllllllllll Plaintiffs - Appellants
v.
Homeward Residential, Inc., formerly known as American Home Mortgage
Servicing, Inc.; Ocwen Loan Servicing, LLC
lllllllllllllllllllll Defendants - Appellees
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Appeal from United States District Court
for the Eastern District of Arkansas - Jonesboro
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Submitted: April 7, 2016
Filed: May 27, 2016
[Unpublished]
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Before GRUENDER, ARNOLD, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Savoil King and Dorothy King appeal from an adverse final judgment. The
sole issue they raise on appeal is whether the district court erred in dismissing their
unjust-enrichment claim under Arkansas law, which they asserted against mortgage

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loan servicers Homeward Residential, Inc., and Ocwen Loan Servicing, LLC (the
loan servicers).
In support of their unjust-enrichment claim, the Kings alleged that they
consistently had maintained hazard insurance on their home, as required by their
mortgage contract; that they had informed the loan servicers of this coverage, as
required by the mortgage contract; that the loan servicers had force-placed additional
hazard insurance on their home at artificially high rates; and that the loan servicers
or their affiliates unduly had profited at the Kings’ expense from this additional forceplaced hazard insurance. In an interlocutory order, the district court dismissed the
Kings’ unjust-enrichment claim, applying the general rule that an unjust-enrichment
claim is not available when an express written contract exists. After further
proceedings that ultimately led to the adverse final judgment, the Kings filed a timely
notice of appeal that designated the final judgment and brought up for review the
dismissal of their unjust-enrichment claim. See Greer v. St. Louis Reg’l Med. Ctr.,
258 F.3d 843, 846 (8th Cir. 2001) (ordinarily notice of appeal specifying final
judgment brings up for review all orders that led up to and served as predicate for
final judgment).
Upon careful de novo review, we conclude that the district court erred in
dismissing the Kings’ unjust-enrichment claim against the loan servicers. See
Plymouth Cty. v. Merscorp, Inc., 774 F.3d 1155, 1158 (8th Cir. 2014) (Fed. R. Civ.
P. 12(b)(6) dismissal is reviewed de novo). We conclude that the Kings stated an
unjust-enrichment claim under Arkansas law and that their allegations adequately
established that the claim was not inconsistent with the contract at issue. See United
States v. Applied Pharmacy Consultants, Inc., 182 F.3d 603, 605-09 (8th Cir. 1999)
(affirming award based on unjust-enrichment theory in case involving Arkansas law;
noting general rule that unjust enrichment is not an available means of recovery when
there is express contract between parties, but concluding that exception to general
rule was properly applied where there was no inconsistency between unjust-2-

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enrichment recovery and what contract provided); see also Campbell v. Asbury Auto.
Inc., 381 S.W.3d 21, 36-38 (Ark. 2011) (to find unjust enrichment, party must have
received something of value, to which he or she is not entitled and which he or she
must restore; there must also be some operative act, intent, or situation to make
enrichment unjust and compensable; reversing grant of summary judgment that was
based on existence of contract between parties; discussing exception to general rule
and citing Applied Pharmacy Consultants).
Accordingly, we vacate the district court’s dismissal of the Kings’
unjust-enrichment claim, and we remand this case to the district court for further
proceedings.
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