May v. Nationstar Mortgage, LLC
MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Defendant's first motion to dismiss [Doc. 18] is GRANTED in part with respect to the wrongful foreclosure claim in Count VI of the second amended complaint only, and is otherwise DENIED. IT IS FURTHER ORDERED that Defendant's second motion to dismiss [Doc. 58] is DENIED. IT IS FINALLY ORDERED that the wrongful foreclosure claim in Count VI of the second amended complaint is DISMISSED. Signed by Magistrate Judge Thomas C. Mummert, III on November 19, 2014. (MCB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
JEANNIE K. MAY,
NATIONSTAR MORTGAGE, LLC.,
Case number 4:14cv0578 TCM
MEMORANDUM AND ORDER
This matter is before the Court1 on motions filed by Nationstar Mortgage, LLC
("Defendant") to dismiss, under Federal Rule of Civil Procedure 12(b)(6), Counts II, IV, V,
VI, and IX of the second amended complaint filed by Jeannie K. May ("Plaintiff") [Docs. 18
and 58]. Plaintiff concedes that the claim in Count VI is moot and otherwise opposes the
Plaintiff challenges Defendant's handling of a loan Plaintiff originally obtained from
a different entity in 2007 to purchase her residence. After Plaintiff filed this action in state
court, Defendant removed the lawsuit to this Court on the grounds that Plaintiff alleged, in
her then-pending first amended petition, violations of federal statutes, which claims fall within
this Court's federal question jurisdiction, 28 U.S.C. § 1331, and pursued related state law
claims, over which this Court may exercise supplemental jurisdiction under 28 U.S.C. §
1367(a). Now before the Court is Plaintiff's ten-count second amended complaint, and
The case is before the undersigned United States Magistrate Judge by written consent of
the parties. See 28 U.S.C. § 636(c).
Defendant's motions to dismiss five of the six state law claims in that complaint. In particular,
Defendant moves for dismissal of the two claims that Defendant's challenged actions violated
the Missouri Merchandising Practices Act ("MMPA"), Mo. Rev. Stat. §§ 407.010 et seq.
(Counts II and IX), and seeks dismissal of the claims that Defendant is liable for slander of
title (Count IV), invasion of privacy (Count V), and wrongful foreclosure (Count VI). The
motions to dismiss do not challenge either Plaintiff's sixth state law claim for Defendant's
alleged breach of contract (Count VII) or any of Plaintiff's four claims that Defendant's
challenged conduct violates several federal statutes.
Rule 12(b)(6) Standard. A motion filed under Federal Rule of Civil Procedure 12(b)(6)
requests dismissal for "failure to state a claim upon which relief can be granted." When
resolving such a motion, the court must take as true the alleged facts and determine whether
they are sufficient to raise more than a speculative right to relief. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555-56 (2007); accord Hager v. Arkansas Dep't of Health, 735
F.3d 1009, 1013 (8th Cir. 2013) (under Rule 12(b)(6), "the factual allegations in the complaint
are accepted as true and viewed most favorably to the plaintiff"). The court does not,
however, accept as true any allegation that is a legal conclusion. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009); accord Hager, 735 F.3d at 1013 ("[c]ourts must not presume the truth of
legal conclusions couched as factual allegations," citing Papasan v. Allain, 478 U.S. 265, 286
A complaint must have "'a short and plain statement of the claim showing that the
[plaintiff] is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.'" Twombly, 550 U.S. at 555 (quoting Fed. R. Civ. P.
8(a)(2) and then Conley v. Gibson, 355 U.S. 41, 47 (1957), abrogated by Twombly, supra);
see also Gregory v. Dillard's Inc., 565 F.3d 464, 473 (8th Cir. 2009) (en banc). While
detailed factual allegations are not necessary, a complaint that contains "labels and
conclusions," and "a formulaic recitation of the elements of a cause of action" is not sufficient.
Twombly, 550 U.S. at 555; accord Iqbal, 556 U.S. at 678.
The complaint must set forth "enough facts to state a claim to relief that is plausible
on its face." Twombly, 550 U.S. at 570; accord Iqbal, 556 U.S. at 678; Braden v. Wal-Mart
Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009). "A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. "[T]he complaint
should be read as a whole, not parsed piece by piece to determine whether each allegation, in
isolation, is plausible." Braden, 588 F.3d at 594. If the claims are only conceivable, not
plausible, the complaint must be dismissed under Rule 12(b)(6). Twombly, 550 U.S. at 570;
accord Iqbal, 556 U.S. at 679.
With respect to Plaintiff's state claims, this Court applies Missouri law to ascertain the
elements of those claims. See Walker v. Barrett, 650 F.3d 1198, 1203 (8th Cir. 2011)
(Missouri law applies to state claims pursued under the federal court's supplemental
jurisdiction). "When construing Missouri law, '[this Court is] bound by the decisions of the
Missouri Supreme Court regarding issues of substantive state law.' Bockelman v. MCI
Worldcom, Inc., 403 F.3d 528, 531 (8th Cir. 2005)." Id. Absent decisions of the Missouri
Supreme Court, this Court considers "opinions from the Missouri Court of Appeals as
'particularly relevant' and must follow them when those opinions provide 'the best evidence
of Missouri law.' [Bockelman, 403 F.3d at 531] (quotations and citations omitted)." Id.
Importantly, a court considering a Rule 12(b)(6) motion to dismiss "is not limited to
the allegations in the complaint, but may also consider 'materials that do not contradict the
complaint, or materials that are necessarily embraced by the pleadings.' Noble Sys. Corp. v.
Alorica Cent., LLC, 543 F.3d 978, 982 (8th Cir. 2008)." Smithrud v. City of St. Paul,
Minn., 746 F.3d 391, 397 (8th Cir.), cert. denied, 135 S. Ct. 361 (2014). Here, Plaintiff
provided forty-one exhibits with her first amended petition, which was filed upon removal of
this case from state court. The second amended complaint contains references to those
exhibits.2 Because those materials are "necessarily embraced" by the second amended
complaint, the Court may consider those exhibits in resolving the pending motions to dismiss.
Defendant provided as exhibits to its second motion to dismiss a copy of the note and
a copy of the deed of trust pertaining to Plaintiff's purchase of her home. While these
The forty-one exhibits were not filed again with the second amended complaint, which had
no exhibits attached to it. (See Exhibits attached to First Amended Petition [Doc. 7] and Second
Amended Complaint [Doc. 56].) Those forty-one exhibits support the allegations in the first
amended petition as well as the same allegations in the second amended complaint.
One of the exhibits, Exhibit CC (see ¶ 51 of the Second Am. Compl. [Doc. 56]), was not
marked as Exhibit CC or filed separately (see Doc. 7 attachments), but was submitted as the third
and fourth page of the material submitted as Exhibit BB [Doc. 7-28].
materials were not provided as part of or with either the first amended petition or the second
amended complaint, the deed of trust may be considered a public record in that it was filed
with the St. Louis County Recorder of Deeds office. In Noble Sys. Corp., the United States
Court of Appeals for the Eighth Circuit stated that "[w]hen ruling . . . a motion to dismiss
under Rule 12(b)(6) . . . , a district court . . . may . . . consider some public records." Noble
Sys. Corp., 543 F.3d at 982 (finding a financing statement that was "on file with the state of
Minnesota" was "a public record that can be considered" in resolving a Rule 12(b)(6) motion
"even if not mentioned expressly in the pleadings"). Under the circumstances, because the
deed of trust is a public record and because both the note and the deed of trust are "necessarily
embraced" by the allegations in the second amended complaint, the Court may consider those
documents to resolve the issues presented by Defendant's motions to dismiss.
Based on the standard applicable to the consideration of Rule 12(b)(6) motions, the
factual allegations in the second amended complaint, taken as true, reveal in relevant part that
Jeannie K. May ("Plaintiff"), a single person, purchased her home in St. Louis County,
Missouri, in May 2007, with a $100,000 loan financed by Cornerstone Mortgage, Inc. (Pl.
Second Am. Compl. ¶¶ 1, 4, 8, 9.) After the closing, the servicing of the loan was transferred
to CitiMortgage and then, in November 2010, to Defendant. (Id. ¶¶ 5, 10, 19.) Plaintiff
alleges that the transfer to Defendant was subject to a contract, specifically, a pooling and
servicing agreement ("PSA"), that set forth Defendant's duties and responsibilities in servicing
Plaintiff's note and mortgage. (Id. ¶¶ 11, 12.)
Plaintiff began having financial difficulties in 2007, fell behind in her mortgage
payments, and filed on November 7, 2007, a voluntary petition for relief under Chapter 13 of
the United States Bankruptcy Code ("Bankruptcy Proceeding"). (Id. ¶¶ 14, 15.) CitiMortgage
filed in the Bankruptcy Proceeding a proof of claim, including a claim for $1,709.70 in prepetition charges. (Id. ¶ 18.) The Chapter 13 Plan ("Plan"), which was confirmed by the
Bankruptcy Court Judge, required in relevant part both Plaintiff's payment to the Bankruptcy
Trustee of at least $395.00 per month for sixty months, as well as Plaintiff's monthly payment
of $833.93 to CitiMortgage, Inc. (and then Defendant) for the loan on her home. (Id. ¶¶ 16,
17; see also Ex. B [Doc. 7-2].)
In April 2011, Defendant filed a motion for relief from the bankruptcy stay unless
Plaintiff paid a total of $4,838.38 for five post-petition mortgage payments she had reportedly
not made. (Pl. Second Am. Compl. ¶ 20 [Doc. 56].) Plaintiff then tendered, and Defendant
negotiated, a cashier's check in that amount; and Defendant withdrew its motion for relief
from the bankruptcy stay. (Id. ¶¶ 21, 22.) Defendant did not file in Plaintiff's bankruptcy
proceeding any notice or demand for payment of any other amount or fee. (Id. ¶ 23.)
On November 15, 2012, the Bankruptcy Trustee filed a notice under Bankruptcy Rule
3002.1(f) reporting that the full amount of the pre-petition default amount of $1,709.70
claimed by Defendant and its predecessor, CitiMortgage, had been paid by the Trustee, and
that all post-petition monthly payments had been made by Plaintiff. (Id. ¶ 24.) In its response
to that notice, Defendant "admitted that [Plaintiff] had paid" in full the pre-petition amount
due of $1,790.70, as well as "all post-petition amounts due to Defendant . . . as of the date of
the Trustee's . . . notice." (Id. ¶ 25.)
Plaintiff made timely payments of $859.38 to Defendant in December 2012, January
2013, and February 2013. (Id. ¶ 27.) During this time, customer service representatives for
Defendant orally confirmed for Plaintiff that she was current on her mortgage. (Id. ¶ 28; see
also ¶ 30.) On March 8, 2013, April 8, 2013, May 7, 2013, June 14, 2013, July 12, 2013, and
August 13, 2013, Plaintiff tendered her mortgage payments to Defendant, in the amounts of
$859.38 in March and April, and $999.45 in May, June, July, and August. (Id. ¶¶ 34, 39, 48,
52, 54, and 56.)
In a late February 2013 statement from Defendant regarding Plaintiff's March 2013
mortgage obligation, Plaintiff was advised for the first time that she owed Defendant
$2,097.20, in addition to her monthly payment of $859.38, for "unpaid late charges, and
lender paid expenses which included legal fees and property inspections." (Id. ¶ 29.) She
contacted Defendant's customer service department and unsuccessfully "attempted to explain
that [Defendant] was mistaken." (Id. ¶ 30.) Plaintiff subsequently received other similar
notices, dated March 11, 2013 and April 18, 2013, reporting that she owed Defendant amounts
beyond Plaintiff's regular monthly payment amount. (Id. ¶ 36, 43.) The April 18, 2013 notice
reported that she had a past due amount totaling $4,296.90 and unpaid late charges of
$919.80. (Id. ¶ 43.)
Plaintiff also received from Defendant a "Suspense Notice," dated February 28, 2013,
indicating that "unapplied funds" had been placed in a "suspense account which is used for
situations where funds 'are insufficient to be applied as a full payment.'" (Id. ¶ 31.) She
received five more "Suspense Notices," dated March 29, 2013, April 1, 2013, May 9, 2013,
June 18, 2013, and July 16, 2013. (Id. ¶¶ 37, 38, 50, 53, 55.)
Additionally, Plaintiff began receiving "collection calls from [Defendant's]
representatives . . . regarding her 'delinquency'"; and Plaintiff responded that she did not owe
a delinquency. (Id. ¶¶ 32, 42; see also ¶47.) On March 6, 2013, April 8, 2013, and April 25,
2013, Defendant called Plaintiff "at work to determine when she would be paying [the]
alleged arrearage . . . . claim[ing] . . . that she was five months behind and had not made a
payment since September 2012." (Id. ¶¶ 33, 40, 46.) The calls she received at work upset
Plaintiff, and embarrassed her to the extent "her coworkers and manager [could] hear her
trying to explain that she was not behind on her mortgage." (Id. ¶¶ 33, 40, 46.) During the
April 2013 calls, Plaintiff asked Defendant not to "contact her again regarding their mistake."
(Id. ¶¶ 40, 46.) Plaintiff also asked Defendant "to call her cell phone after 4:00 PM when she
was at home." (Id. ¶ 46.) Defendant continued calling Plaintiff on her cell and work
telephones until the end of October 2013. (Id. ¶ 48.)
Plaintiff received from Defendant an Escrow Disclosure Statement analysis, dated
March 8, 2013, reporting that, beginning on May 1, 2013, her monthly payment would
increase to $999.45 to cover an alleged escrow shortage and deficiency of $923.41. (Id. ¶ 35.)
Plaintiff paid the increased amount after April 2013. (Id. ¶¶ 48, 52, 54, and 56.)
In her effort to correct the situation with Defendant, Plaintiff contacted Defendant on
several occasions, and sent Defendant three faxes in April 2013. (Id. ¶ 41; see also ¶ 42.)
During a phone conversation on April 23, 2013, Defendant's representative advised Plaintiff
that she would get a written response to her fax within ten days; and, in a conversation on
April 30, 2013, advised Plaintiff that "research" would provide a written response. (Id. ¶¶
By letter dated April 19, 2013, Defendant notified Plaintiff that Defendant declared her
to be in default under the terms and conditions of her note and deed of trust. (Id. ¶ 44.) In
that letter, Defendant advised Plaintiff that, as of that date, Defendant was seeking to collect
a debt totaling $6,284.33, "which includes the sum of payments that have come due on and
after the date of default 12/01/2012," and the amount may be greater on the date of payment.
(Id.; see also Ex. Y [Doc. 7-25].)
In May and June 2013, Defendant offered Plaintiff a Trial Modification Plan for her
loan, which Plaintiff did not accept. (Pl. Second Am. Compl. ¶¶ 49, 51.)
On August 21, 2013, Plaintiff sent Defendant correspondence requesting an
explanation of how her account went from being current in November 2012 to being over
$6,000.00 in arrears ten months later, even though during that time period Plaintiff had made
every monthly payment due. (Id. ¶ 57.) By letter, dated September 3, 2013, Defendant
responded to Plaintiff's inquiry and included copies of the note, the deed of trust, and an
alleged payment history.3 (Id. ¶ 59.)
By letter, dated August 30, 2013, Defendant advised Plaintiff that Defendant declared
her to be in default and she had until October 4, 2013, to pay $6,013.28 "to bring the account
out of default." (Id. ¶ 58.)
The enclosures reportedly sent with the September 3, 2013 letter are not part of the copy
of that letter, Ex. KK, filed in this case. (See Doc. 7-36.)
The $999.45 mortgage payments Plaintiff tendered in September 2013, October 2013,
and November 2013 were rejected by Defendant and returned to her. (Id. ¶ 60.)
Plaintiff received notification in November 2013 that a law firm ("Law Firm") had
been retained by Defendant "to act as Trustee to foreclose on her home." (Id. ¶ 61.) Plaintiff's
attorney contacted the Law Firm in December 2013 disputing any default and asserting
neither Defendant nor the Law Firm had a right to proceed with a foreclosure. (Id. ¶ 62.) The
Law Firm's response, dated December 30, 2013, included a copy of the note and deed of trust,
as well as "another pay history for the account."4 (Id. ¶ 63.)
Plaintiff tendered her $999.45 monthly mortgage payments in December 2013, January
2014, and February 2014. (Id. ¶ 65.)
In January 2014, Plaintiff received notice that her home was the subject of a
foreclosure sale scheduled for February 24, 2014. (Id. ¶ 66.) There is no dispute that the
foreclosure sale was subsequently cancelled. (See, e.g., id. ¶ 3.)
By letter dated March 3, 2014, Defendant returned Plaintiff's $999.45 monthly
mortgage payment as "insufficient to bring the account current and alleged that [her] account
was $11,965.58 in arrears." (Id. ¶ 131.)
On March 10, 2014, Plaintiff mailed Defendant two letters in which she identified her
name, address, social security number, and account number; asked Defendant to correct her
account balance based on enclosed evidence that her account was "current by the completion
The enclosures reportedly sent with the December 30, 2013 letter are not part of the copy
of that letter, Ex. NN, filed in this case. (See Doc. 7-39.)
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of her bankruptcy plan"; and asked for explanations for the increase in her monthly payment
amount to $1,005.72, for Defendant's failure to apply her monthly payments to her account,
for Defendant's rejection of those payments, for the information in her "escrow account
disclosure statement," and for the reported "past due balance." (Id. ¶ 132.)
By letter dated April 4, 2014, Plaintiff's bank notified her that Defendant had returned
her $1,005.72 payment, dated March 25, 2014. (Id. ¶ 135.) On April 28, 2014, Defendant
"confirmed an electronic payment in the amount of $1,005.72." (Id. ¶ 137.)
Defendant acknowledged receipt of Plaintiff's March 10, 2014 "Qualified Written
Request" ("QWR"); and sought additional time to respond to it. (Id. ¶¶ 134, 136.) In a letter
dated May 8, 2014, Defendant stated that it had corrected the error "complained of in the
QWR, acknowledged her payment amount is $907.05, . . . claimed that the account was
'approximately' eight payments delinquent with the next payment due for October 1, 2013,"
and "included an incomprehensible 'Payment History Transaction Report' without further
explanation." (Id. ¶ 139; see also ¶ 149.) Through a letter, dated May 24, 2014, Plaintiff
acknowledged receipt of Defendant's May 8, 2014, letter and
asked for an explanation of the increase in her payments from $859.38 per
month to $907.05 per month when the note is on a fixed interest rate, her
homeowners['] insurance premium had only increased by a total of $41.00 and
her property taxes had decreased by a total of $98.67; requested copies of
current and corrected escrow analysis; pointed out that [Defendant] had rejected
exactly eight payments and now complained that her account was eight months
behind; and sought correction of her interest statements for 2012 and 2013.
(Id. ¶¶ 141, 142.)
On May 30, 2014, Defendant processed two payments, one in the amount of $907.05,
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and one in the amount of $7,256.40, for a total of "$8,162.45" [sic - $8,163.45] or "nine
months of payments at $907.05 . . . [which] should have brought the account current." (Id.
In a letter dated June 2, 2014, Defendant acknowledged receipt of the May 24, 2014
letter, and advised Plaintiff that her account "was now 9 months behind." (Id. ¶ 145.)
By a letter dated June 28, 2014, Plaintiff's bank informed her that Defendant had
rejected her June payment of $907.05. (Id. ¶ 146.)
On June 29, 2014, Plaintiff sent Equifax a certified letter to dispute "credit reporting
by [Defendant] in a credit report dated January 27, 2014 regarding her mortgage including
reports of delinquency in payment between March 2013 and October 2013." (Id. ¶ 147.) By
letter dated July 25, 2014, "Equifax notified Plaintiff that it had researched the account, that
historical account information was deleted, and [Defendant] had provided additional
information regarding the account." (Id. ¶ 154.)
On July 29, 2014, Plaintiff's bank advised her that Defendant had rejected her July
2014 payment in the amount $907.05, telling the bank that her "account was closed." (Id. ¶
155.) Plaintiff's bank temporarily "discontinued her ability to make payments electronically"
and Defendant has blocked Plaintiff "from electronic access to her mortgage account and is
not sending monthly statements." (Id. ¶¶ 157, 158.)
By a credit report Plaintiff obtained on August 19, 2014, Plaintiff learned that
as of July 24, 2014, [Defendant] and Equifax continued to report Plaintiff's
Mortgage as a "collection account" with a past due balance [of] $1,664.00, an
outstanding balance of $91,944.00, a last payment date of April 2014, and as
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past due between 30 and 180 days from June of 2012 to March of 2014.
(Id. ¶ 159.)
Plaintiff has been denied credit due to Defendant's failure to investigate her
dispute. (Id. ¶ 160.)
Plaintiff's second amended complaint seeks monetary and equitable relief based on six
state law claims and four claims of federal statutory violations. By its pending motions,
Defendant seeks dismissal of the MMPA claims in Counts II and IX, as well as the slander
of title, invasion of privacy, and wrongful foreclosure claims in Counts IV, V, and VI,
respectively, of the second amended complaint. The Court will address the two MMPA
claims before addressing the other challenged state law claims.
Violations of the MMPA (Counts II and IX). For both of her MMPA claims, Plaintiff
alleges that Defendant has serviced the loan since November 1, 2010, and that its actions in
collecting payments, calculating interest, and providing Plaintiff with customer support
qualify as "services" under the MMPA for which Defendant received payment through a
portion of Plaintiff's monthly payments. (Id. ¶¶ 79-82, 168-71.)
In Count II, Plaintiff alleges that Defendant violated the MMPA by engaging in unfair,
deceptive, and misleading practices in connection with servicing the mortgage on Plaintiff's
a. Refusing to abide by its own admission filed under oath at the close of
[Plaintiff]'s bankruptcy case in November of 2012 and [refusing to] treat
[Plaintiff]'s account as current beginning in February of 2013 and continuing
to the present time;
b. Declaring expenses which had already been paid as not paid and treating
them as delinquencies for the purpose of declaring that the account was in
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default when it was not in default;
c. Attempting to collect expenses which were allegedly incurred during the
course of [Plaintiff]'s Chapter 13 Bankruptcy [Proceeding] which were never
disclosed in the Bankruptcy [Proceeding] as required by the Bankruptcy Rules
and which were not sanctioned by the bankruptcy court for the purpose of
declaring that the account was in default when it was not in default; and
d. Wrongfully foreclosing on [Plaintiff]'s home.
(Id. ¶ 88.) For losses resulting from this conduct, Plaintiff seeks an award of more than
$25,000.00 in actual, compensatory, and punitive damages, as well as attorney's fees. (Id. ¶¶
89 and 90, as well as the ¶ starting with "Wherefore.")
For the MMPA claim in Count IX, Plaintiff alleges that Defendant violated the MMPA
by engaging in unfair, deceptive, and misleading practices in connection with servicing the
mortgage on Plaintiff's home, including:
a. Refusing to abide by its own admission filed under oath at the close of
[Plaintiff]'s bankruptcy case in November of 2012 and [refusing to] treat
[Plaintiff]'s account as current beginning in February of 2013 and continuing
to the present time; and
b. Wrongfully rejecting payments properly made under the note and deed of
(Id. ¶ 177.) For losses resulting from this conduct, Plaintiff seeks an award of more than
$75,000.00 in actual, compensatory, and punitive damages, as well as attorney's fees. (Id. ¶¶
178 and 179 as well as the ¶ staring with "Wherefore.")
Defendant moves to dismiss these two MMPA claims on the grounds the challenged
conduct, which occurred after the conclusion of the Bankruptcy Proceeding and five years
after the original loan transaction, did not occur "in connection with the sale" of
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"merchandise," or the original loan transaction, as required by the MMPA. Plaintiff counters
that the allegations regarding the violations of the MMPA state claims for relief because they
focus on Defendant's conduct in servicing the original loan.
In relevant part, the MMPA provides that any person who purchases5 or leases
merchandise primarily for personal, family, or household purposes and
"suffers an ascertainable loss of money or property" as the result of an unlawful
practice may file a civil lawsuit to recover actual and punitive damages,
[equitable relief, and] attorney fees, from any person who has engaged in a
method, act or practice declared unlawful by [Mo. Rev. Stat. §] 407.020. [Mo.
Rev. Stat. §] 407.025.1.
Huch v. Charter Commc'ns, Inc., 290 S.W.3d 721, 725 (Mo. 2009) (en banc). More
specifically, § 407.020.1 declares that
The act, use or employment by any person of any deception, fraud, false
pretense, false promise, misrepresentation, unfair practice or the concealment,
suppression, or omission of any material fact in connection with the sale or
advertisement of any merchandise in trade or commerce . . . in or from the state
of Missouri, is declared to be an unlawful practice. . . . Any act, use or
employment declared unlawful by this subsection violates this subsection
whether committed before, during or after the sale, advertisement or
The Missouri Supreme Court has interpreted the "plain and ordinary meaning" of the MMPA's
"unrestricted, all-encompassing and exceedingly broad" prohibition against an "unfair
practice" as "cover[ing] every practice imaginable and every unfairness to whatever degree."
Although the MMPA does not define "purchase," the Missouri Court of Appeals for the
Eastern District has noted in discussing an MMPA claim that it "is defined in Webster's dictionary
as meaning 'to obtain by paying money or its equivalent.'" Raster v. Ameristar Casinos, Inc., 280
S.W.3d 120, 128 (Mo. Ct. App. 2009) (citing Jackson v. Charlie's Chevrolet, Inc., 664 S.W.2d 675,
677 (Mo. Ct. App. 1984)).
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Ports Petroleum Co. v. Nixon, 37 S.W.3d 237, 240 (Mo 2001) (en banc). The MMPA
defines "[s]ale" as "any sale, lease, offer for sale or lease, or attempt to sell or lease
merchandise for cash or on credit"; defines "[m]erchandise" to include "intangibles, real estate
or services"; and defines "[t]rade" or "commerce" as "the advertising, offering for sale, sale,
or distribution, or any combination thereof, of any services and any property, tangible or
intangible, real, personal, or mixed, and any other article, commodity, or thing of value
wherever situated" that "directly or indirectly affects the people of this state." Mo. Rev. Stat.
§§ 407.010(4), 407.010(6), and 407.010(7) (emphases added).
To state a claim for violating the MMPA, a litigant must allege that the litigant (1)
purchased or leased merchandise to be used primarily "(2) for personal, family, or household
purposes, and (3) suffered an ascertainable loss of money or property as a result of" the
defendant's alleged conduct that is declared unlawful by Mo. Rev. Stat. § 407.020. Ward v.
West Cnty. Motor Co., 403 S.W.3d 82, 84 (Mo. 2013) (en banc). Additionally, the litigant
seeking relief under the MMPA must allege a relationship between the challenged conduct
and the purchased or leased merchandise. Conway v. CitiMortgage, Inc., 438 S.W.3d 410,
415 (Mo. 2014) (en banc) ([Doc. 29-1 at 3-13].)
In its first motion to dismiss, Defendant argues that the MMPA claim in Count II
should be dismissed because Plaintiff does not allege that Defendant engaged in any unfair,
deceptive or misleading practice "in connection with" Plaintiff's 2007 transaction by which
she obtained the original loan, the transaction that, Defendant urges, constituted a sale of
merchandise in trade or commerce for purposes of the MMPA. Defendant contends that
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Plaintiff's allegations instead focus on Defendant's loan servicing conduct since November
2012, which conduct was "not incident to the 2007 consumer sales transaction or purchase of
real estate or merchandise," but occurred more than five years later.
After Defendant filed that motion to dismiss, and before Defendant filed the motion
to dismiss challenging the MMPA claim in Count IX, the Missouri Supreme Court issued an
opinion in each of two cases that presented MMPA challenges to loan servicers' conduct:
Conway, supra, and Watson v. Wells Fargo Home Mortg., Inc., 438 S.W.3d 404 (Mo.
2014) (en banc) [Doc. 29-1 at 14-24].
In Conway, supra, the homeowner plaintiffs alleged the defendants, the assignee of the
mortgage loan and the loan servicer, had violated the MMPA by wrongfully foreclosing on
a deed of trust. Conway, 438 S.W.3d at 412. The defendants moved to dismiss for failure
to state a claim, arguing that the allegedly wrongful foreclosure did not occur "in connection
with" the sale of merchandise, the original loan, as required by the MMPA. Id. at 412, 413.
The trial court granted the motion after concluding the defendants were not parties to the
original loan transaction and the MMPA "did not apply to post-sale activities that were
unrelated to claims or representations made before or at the time of the transaction." Id. at
412; see also id. at 413.
The Missouri Supreme Court considered the plain and ordinary meaning of the
statutory phrase "in connection with" and the MMPA's purpose, and reversed. Conway,
supra. Noting that the dictionary did not define the full phrase "in connection with," the state
supreme court looked to the definition of "to connect" as "to have a relationship" and held that
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Mo. Rev. Stat. § 407.020.1 "prohibits the use of the enumerated deceptive practices if there
is a relationship between the sale of merchandise and the alleged unlawful action[, which
a]ccording to the statute, . . . may occur at any time before, during or after the sale and by any
person." Id. at 414. Therefore, the state supreme court stated, the plaintiffs needed to allege,
in relevant part, a relationship between the challenged foreclosure actions and the original
loan in order to avoid dismissal for failure to state a claim. Id. at 415.
The Missouri Supreme Court found that, under the circumstances, the allegations stated
an MMPA claim. Id. at 416-17. First, the loan and the parties' obligations under the loan
lasted a period of time beyond the initial transaction.
For the purposes of the MMPA, a loan is an agreed upon bundle of services
being "sold" by the lender to the borrower, and the "sale" of a loan lasts until
the last service is performed or the loan is repaid. Accordingly, allegations of
fraud and deception in the course of those services are "in connection with" the
"sale," as required by section 407.020.1. This is true even where, as here, the
party committing the alleged fraud or deception is not the seller. As long as the
plaintiff alleges that the misconduct occurred in connection with the services
that comprise the "sale" of a loan, the actor can be liable under the MMPA.
Id. at 412; see also id. at 415 ("[a] loan is composed of both the initial extension of credit and
the bundle of related services. It creates a long-term relationship in which the borrower and
the lender continue to perform various duties, such as making and collecting payments over
an extended period of time. Because each party must continue to perform these duties for the
life of the loan, the sale continues throughout the time the parties perform their duties. A
party's right to collect a loan is part of that sale and is, therefore, 'in connection with' the
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Next, the Missouri Supreme Court concluded that, "[g]iven that the MMPA was
enacted to supplement the common law definition of fraud, there is no compelling reason to
interpret 'in connection with' to apply only when the entity engaged in the misconduct was a
party to the transaction at the time the transaction was initiated." Id. at 415.
Even if the loan servicer was not an original party when the lender and
borrower agreed to the services and responsibilities each would perform,
enforcing the terms of the loan is in connection with the ongoing sale of the
loan . . . . Because a loan is an ongoing transaction, loan collection procedures,
whether initiated by a loan originator or a loan servicer, are done "in connection
with" the original procurement of the loan.
Id. at 415-16; id. at 416 ("[g]iven the potentially broad scope of what is prohibited under the
MMPA, it would seem incongruous to limit 'in connection with' to only apply to the original
parties in a transaction"). Under the circumstances, the plaintiffs had stated a claim under the
MMPA because the defendants' "alleged [loan collection] actions were 'in connection with'
the [original] loan." Id. at 416-17.
In Watson, supra, the plaintiff sought relief under the MMPA based on allegations that
the defendant loan servicer had both "engaged in bad faith negotiations of a loan modification
and wrongfully foreclosed on a deed of trust." Watson, 438 S.W.3d at 405, 406-07. "The
deed of trust executed in the original transaction specifically stated that there was no
obligation to engage in renegotiations." Id. at 408; see also id. at 406. The trial court granted
the defendant's motion for summary judgment, after finding that the defendant, who was not
a party to the original loan, was not alleged to have engaged in conduct that was "'in
connection with' the sale of the original loan." Id. at 406. With respect to the wrongful
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foreclosure claim, the Missouri Supreme Court reversed the entry of summary judgment, on
the basis of its decision in Conway. Id. at 407-08.
As to the bad faith negotiation claim, the Supreme Court affirmed the trial court's
decision upon concluding that the defendant's challenged actions could not constitute a
violation of the MMPA because renegotiation of the loan's terms "was not a service the lender
agreed to sell or the borrower agreed to buy when the parties agreed to the loan" originally
and "the extent of [the bundle of services included in a loan] is fixed at the outset when the
parties agree to the terms of the loan." Id. at 408. Therefore, the defendant "was not
enforcing the terms of the original loan but rather contemplating creating a new agreement"
when it "engag[ed] in loan modification negotiations," and the defendant's challenged conduct
did not occur "in connection with" the original loan transaction. Id. Importantly, the
Missouri Supreme Court noted that the plaintiff had not alleged, and that court did not
consider, that the loan modification negotiations constituted a separate sale under the MMPA
and that the defendant's actions were in connection with those negotiations. Id. at 407 n.2.
In its second motion to dismiss, Defendant argued that this Court should apply the
decision in Watson, supra, and dismiss the MMPA claim in Count IX because Defendant's
challenged conduct does not relate to the original 2007 loan transaction but to Plaintiff's
confirmed Bankruptcy Plan, which altered the repayment terms of the original loan
transaction in a manner "not . . . agreed upon or even contemplated at the time the original
Loan was 'sold.'"
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Plaintiff counters that the Bankruptcy Code, 11 U.S.C. § 1322(b)(2), does not permit
the confirmed Bankruptcy Plan to modify the loan under the circumstances here; and that
Conway, supra, applies to allow Plaintiff's pursuit of her MMPA claims, because those claims
arise out of Defendant's alleged conduct in making and collecting payments and pursuing
foreclosure in connection with the original loan's terms.
Finding Conway, rather than Watson, applicable, the Court will deny Defendant's
motions to dismiss Plaintiff's MMPA claims.
Nothing in Plaintiff's allegations states or indicates that the basis of Defendant's
challenged conduct arises out of loan terms that differ from the terms of the original loan. Nor
is there any indication in Plaintiff's allegations that Defendant and Plaintiff agreed to change
the terms of the original loan agreement. In fact, allegations regarding Defendant's postbankruptcy offer to enter into a loan modification demonstrate such an effort was
unsuccessful in that Plaintiff did not agree to do that. Plaintiff's claims are not based on any
conduct by Defendant arising out of that unsuccessful loan modification effort. Therefore,
Watson is inapplicable.
Instead, Plaintiff has stated MMPA claims under the principles of Conway. Plaintiff
is challenging Defendant's servicing of the original loan after Plaintiff's Bankruptcy
Proceeding ended in late November 2012. Plaintiff's allegations demonstrate that she entered
into the 2007 loan to purchase her home and suffered an ascertainable loss of money as a
result of Defendant's allegedly unfair practices in trying to collect payments reportedly due
from Plaintiff after the completion of her Bankruptcy Proceeding. Defendant's allegedly
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unfair practices include Defendant's multiple efforts to collect fees and expenses beyond the
monthly amount due under the loan, despite Plaintiff's payments or tendering of payments to
satisfy her financial obligations to Defendant after November 2012 and Defendant's
statements to the Bankruptcy Court in November 2012 that Plaintiff had, as of that time,
satisfied all pre-petition and post-petition obligations to Defendant. Defendant's challenged
conduct is connected to the original loan because that conduct arises out of Defendant's
servicing of the 2007 loan.
Under the circumstances, Plaintiff's allegations in Counts II and IX state facially
plausible claims for violations of the MMPA; and Defendant's motions to dismiss those counts
will be denied.
Slander of Title Claim (Count IV). In Count IV, Plaintiff alleges that her default was
cured by the completion of the Bankruptcy Proceeding and Plan; that she is not in default
because she has tendered all required payments and has not violated the terms of the note
since then; that she repeatedly notified Defendant by telephone and in writing that she was
not in default and provided documents to support that position; that Defendant knew Plaintiff
was not in default, but proceeded with non-judicial foreclosure and with publication of "notice
of trustee sale based on default in the St. Louis Countian while knowing there was no default";
that Defendant's "knowing and willful publishing of false information regarding default on
her deed of trust [wa]s malicious"; and that Plaintiff has incurred "damages, including
attorney's fees, in her efforts to correct the slander to her title." (Pl. Second Am. Compl. ¶¶
100-03 [Doc. 56 at 21].) For relief based on Defendant's alleged slander of title, Plaintiff
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seeks actual, compensatory, and punitive damages in an amount exceeding $25,000.6
Defendant seeks dismissal of this claim under Rule 12(b)(6) because the successor
trustee, not Defendant, published the notice of foreclosure sale; and because the deed of trust
does not require a trustee to investigate default before publishing notice of a trustee's sale.
Plaintiff responds that Defendant's trustee is not before this Court as a litigant; the trustee is
also Defendant's attorney; and whether the publication was by a trustee or by Defendant's
attorney, Defendant can be held liable due to its agent's conduct. Additionally, Plaintiff
argues, the malice required for a slander action is demonstrated by the publication of the
notice after Defendant had notice or knowledge of the absence of default. Defendant replies
that this tort claim is not viable because the allegations supporting this claim also form the
basis of the breach of contract claim. Furthermore, Defendant urges, Plaintiff has not set forth
allegations supporting agency liability.
To state a slander of property or title claim, a plaintiff having interest in the property
must allege that false words were maliciously published and resulted in pecuniary loss or
injury to the plaintiff. See Lau v. Pugh, 299 S.W.3d 740, 748, 750 (Mo. Ct. App. 2009).
Importantly, "[p]roof of falsity, alone, is not proof of malice." First Nat'l Bank of St. Louis
v. Ricon, Inc., 311 S.W.3d 857, 867 (Mo. Ct. App. 2010). To establish
the existence of malice, [the plaintiff must provide evidence supporting] a
reasonable inference that the representation not only was without legal
justification or excuse, but was not innocently or ignorantly made. Such
Plaintiff also requested injunctive relief to prevent the sale of her property, but the sale has
been canceled, so injunctive relief is not appropriate at this time.
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inference may rest on a foundation of circumstantial evidence and proof of a
lack of probable cause would support an inference that the representation was
not innocently made out of stupidity or ignorance but was known to be false.
Where there is sufficient evidence or where there may be a fair difference of
opinion on the issue of malice, the question whether the defendant in an action
for slander of title was actuated by malice is one of fact for the jury.
Tongay v. Franklin Cnty. Mercantile Bank, 735 S.W.2d 766, 770 (Mo. Ct. App. 1987)
(citations omitted; citing Long v. Rucker, 149 S. W. 1051, 1053-55 (Mo. Ct. App. 1912)).
Even if the plaintiff does not suffer substantial actual damages, the plaintiff "would be entitled
on proof of such charges to recover an award of nominal actual damages." Tongay, 735
S.W.2d at 770. Additionally, "attorney's fees and other legal expenses incurred in clearing
a disparaged title are recoverable as special damages in a slander of title action." Lau, 299
S.W.3d at 748, 750. While the recording "of a false instrument . . . state[s] a claim under
slander of title," Euge v. Golden, 551 S.W.2d 928, 932 (Mo. Ct. App. 1977), other
circumstances also support such a claim. See, e.g., Crowe v. Horizon Homes, Inc., 116
S.W.3d 618, 623-24 (Mo. Ct. App. 2003) (reversing the dismissal of a slander of title claim
based on allegations that the occupiers of the land falsely represented to the county that they
owned the land in order to obtain a stop work order directed against the development of the
land by the owner); Kennedy v. Kennedy, 819 S.W.2d 406, 409-10 (Mo. Ct. App. 1991)
(finding slander of title claim supported by allegations that a prior landowner's attorney's letter
to the United States Forest Service, as well as that attorney's representations to a title
company, knowingly and falsely stated that plaintiffs "did not have good title" to the property,
so as to prevent a property exchange).
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Here, Plaintiff's allegations supporting Defendant's liability for slander of title are
facially plausible. Those factual allegations, taken as true, demonstrate that the notice of
default and foreclosure sale was maliciously published, in that it was published after
Defendant had knowledge or notice that Plaintiff was not in default, and resulted in pecuniary
loss to Plaintiff, to the extent she incurred attorney's fees and may have incurred other
monetary losses in her efforts to prevent and stop the foreclosure sale. The parties' dispute
about whether or not Defendant published the notice, as well as Defendant's argument, first
set forth in its reply, that this tort claim may not be pursued due to Plaintiff's breach of
contract claim, may be presented for resolution during the course of subsequent proceedings,
as deemed appropriate.
Defendant's motion to dismiss Plaintiff's slander of title claim (Count IV) will be
Invasion of Privacy Claim (Count V). In support of her invasion of privacy claim,
Plaintiff alleges that between March and October of 2013, Defendant made multiple phone
calls to Plaintiff at her place of employment and on her cell phone, and "repeatedly sent
collection letters and [other] notices" to Plaintiff in an effort to obtain Plaintiff's payment of
amounts allegedly owed on the loan. As the alleged result of these actions by Defendant,
Plaintiff has "suffered economic and emotional damages, including but not limited to loss of
real and personal property, the loss of equity in her property, a damaged credit rating, and
stress, embarrassment and humiliation."
Characterizing this claim as based on a theory of unreasonable intrusion upon the
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seclusion of another, Defendant moves for its dismissal because Plaintiff did not allege that
the subject matter of her loan is a secret and private matter or a matter she had a right to keep
private in light of her Bankruptcy Proceeding. Additionally, Defendant urges that Plaintiff
did not allege facts demonstrating that Defendant's collection efforts rose to the level of a
"highly offensive" intrusion.
Plaintiff does not dispute that her invasion of privacy claim is based on a theory of
unreasonable intrusion upon Plaintiff's seclusion. In response to Defendant's arguments,
Plaintiff contends that, for this theory, the Missouri Supreme Court does not require that the
subject matter be "a secret and private matter," and this Court should not resolve whether or
not Defendant's conduct constituted a "highly offensive" intrusion because that would invade
the province of the jury.
The Missouri Supreme Court has recognized that an unreasonable intrusion upon the
seclusion of another is an actionable theory for an invasion of privacy claim. See, e.g., Sofka
v. Thal, 662 S.W.2d 502, 509-10 (Mo. 1983) (en banc). Concluding that publicity is not
necessary to establish an unreasonable intrusion upon the seclusion of another, the Missouri
Supreme Court defined this cause of action by quoting the Restatement (Second) of Torts §
One who intentionally intrudes, physically or otherwise upon the solitude or
seclusion of another or his private affairs or concerns, is subject to liability to
the other for invasion of his privacy, if the intrusion would be highly offensive
to a reasonable person.
Sofka, 662 S.W.2d at 510. In considering the scope of a defendant's liability under this
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theory, the state supreme court quoted comment d to § 652B7 of the Restatement (Second) of
d. There is . . . no liability unless the interference with the plaintiff's
seclusion is a substantial one, of a kind that would be highly offensive to the
ordinary reasonable man, as the result of conduct to which [the reasonable man
would strongly object. Thus] there is no liability for knocking at the plaintiff's
door; or calling him on the telephone on one occasion or even two or three, to
demand payment of a debt. It is only when the telephone calls are repeated
with such persistence and frequency as to amount to a course of hounding the
plaintiff, that becomes a substantial burden to his existence, that his privacy is
Assuming "that telephone calls could constitute an actionable 'intrusion,'" the Missouri
Supreme Court in Sofka concluded the entry of summary judgment in the defendant's favor
was appropriate because the plaintiff's deposition testimony revealed that she had received six
to eight telephone calls, at least some of which disrupted her sleep, from the defendant at her
home over an approximately four-month period; that none of the callers threatened or
screamed at her; and that the defendant did not call her at work. Id. "While ordinarily a
question for the jury, [the state supreme court could not] find the six to eight polite telephone
calls made by [the defendant] to plaintiff over a period of several months amount[ed] to the
type of intrusion that could be found highly offensive to the ordinary person or to constitute
'hounding.'" Id. at 511.
Here, Plaintiff's alleged circumstances, which must be taken as true for purposes of
In the opinion, the court mistakenly cited to § "650B," a section that does not exist in the
Restatement (Second) of Torts. See Sofka, 662 S.W.2d at 510.
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Defendant's motion to dismiss, demonstrate that, over the course of several months from early
2013 until late in 2014, Plaintiff received from Defendant numerous telephone calls at work
and on her cell phone, as well as several written communications from Defendant, including
default and foreclosure notices, at her home in Defendant's persistent effort to obtain from
Plaintiff payment of amounts Plaintiff had either paid or unsuccessfully tendered to
Defendant, and despite Plaintiff's efforts to establish that she was not in default. Such conduct
is much more offensive than the six to eight "polite" telephone calls received over a severalmonth period by the plaintiff in Sofka, a plaintiff who had not made or offered to make the
payment at issue in that case. Under the circumstances, it is plausible that a reasonable person
would consider as "highly offensive"the collection efforts Defendant allegedly directed at
Plaintiff's allegations set forth a facially plausible claim for invasion of privacy through
unreasonable intrusion on Plaintiff's seclusion. Defendant's motion to dismiss this claim
(Count V) will be denied.
Wrongful Foreclosure (Count VI). The parties do not dispute that there is no cause of
action in Missouri for attempted wrongful foreclosure. See Reese v. First Mo. Bank &
Trust Co., 736 S.W.2d 371, 373 (Mo. 1987) (en banc). The parties also do not dispute that
the previously scheduled foreclosure sale of Plaintiff's home was canceled. The record does
not reveal any additional efforts to proceed with a foreclosure sale of Plaintiff's home.
Therefore, Defendant's motion to dismiss this claim will be granted.
Plaintiff asks the Court to provide Plaintiff with the opportunity to amend or
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supplement the pleadings "if Defendant should take any action during the pendency of this
lawsuit to schedule an additional non-judicial foreclosure." At this stage of the proceedings,
there is no indication that Defendant will pursue another non-judicial foreclosure sale of
Plaintiff's home while this lawsuit is pending. Therefore, the Court will reserve for another
day the question whether Plaintiff may amend or supplement her pleadings due to any rescheduling of a foreclosure sale of Plaintiff's home that may occur in the future. Plaintiff may
present that issue, as necessary, during the course of subsequent proceedings in this case.
Defendant's first motion to dismiss [Doc. 18] will be granted only so as to dismiss the
wrongful foreclosure claim in Count VI of the second amended complaint. In all other
respects, Defendant's motions to dismiss [Docs. 18 and 58] will be denied.
The hearing scheduled for 9:30 a.m. on November 20, 2014, to consider Plaintiff's
pending motion to compel production [Doc. 62] remains set.
After careful consideration,
IT IS HEREBY ORDERED that Defendant's first motion to dismiss [Doc. 18] is
GRANTED in part with respect to the wrongful foreclosure claim in Count VI of the second
amended complaint only, and is otherwise DENIED.
IT IS FURTHER ORDERED that Defendant's second motion to dismiss [Doc. 58]
IT IS FINALLY ORDERED that the wrongful foreclosure claim in Count VI of the
second amended complaint is DISMISSED.
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/s/ Thomas C. Mummert, III
THOMAS C. MUMMERT, III
UNITED STATES MAGISTRATE JUDGE
Dated this 19th day of November, 2014.
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