David Anderson v. Bank of the West, 23 F.4th 1056

In 2005 Anderson obtained a home loan secured by a Nebraska trust deed that gave the lender a non-judicial power of sale.
In February 2019 U.S. Bank, as trustee, conducted a Trustee’s Sale; Bank of the West, holding a separate deed of trust, was the high bidder.
Anderson sued in Nebraska state court in April 2019 to set aside the sale; the state court dismissed under Gilroy v. Ryberg for failure to plead defects rendering the sale void or voidable.
Anderson amended to add U.S. Bank; U.S. Bank removed the case to federal court, and the district court dismissed Anderson’s Second Amended Complaint (SAC) for failure to state a claim under Nebraska law.
The district court held that Anderson’s allegations of pre-foreclosure federal statutory and regulatory violations (FDCPA, RESPA, National Mortgage Settlement) were not defects in the trustee’s sale under Ryberg and therefore did not justify equitable relief.
The district court denied leave to file a proposed Third Amended Complaint as procedurally defaulted and futile; the Eighth Circuit affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether alleged federal pre-foreclosure violations render a non-judicial trustee's sale voidable and justify setting the sale aside	Anderson: violations of FDCPA, RESPA, and the National Mortgage Settlement were conditions precedent to foreclosure and made the sale voidable	U.S. Bank: those alleged violations occurred before foreclosure and are not defects in the trustee's sale under Nebraska precedent; treating them as conditions precedent would undermine non-judicial foreclosure	Held: Affirmed dismissal — pre-foreclosure regulatory violations as pleaded are not "defects in the trustee's sale" under Ryberg and do not warrant setting aside the sale
Whether denial of leave to amend was an abuse of discretion	Anderson: Rule 15 favors liberal amendment and he should be allowed to file a Third Amended Complaint	Defendants: motion was procedurally defective, untimely, abandoned, and any amendment would be futile under controlling law	Held: Affirmed — denial proper due to procedural default, repeated rule violations, and futility of the proposed amendment

Gilroy v. Ryberg, 667 N.W.2d 544 (Neb. 2003) (establishes three-category framework for defects in trustee’s sales and when equity may set aside a sale)
Manard v. Williams, 952 S.W.2d 387 (Mo. Ct. App. 1997) (discusses irregularities as substantial defects in execution of a foreclosure sale)
U.S. ex rel. Roop v. Hypoguard USA, Inc., 559 F.3d 818 (8th Cir. 2009) (post-dismissal motions to amend are less freely granted)
Moses.com Sec., Inc. v. Comprehensive Software Sys., Inc., 406 F.3d 1052 (8th Cir. 2005) (enumerates compelling reasons to deny leave to amend)
Ryan v. Ryan, 889 F.3d 499 (8th Cir. 2018) (futility is a valid basis to deny leave to amend)