Gary Lackey, Jr. v. Wells Fargo Bank, N.A.
747 F.3d 1033
8th Cir.2014Background
- Lackey defaulted on a 2007 note and deed of trust that named MERS as nominee for the lender; Wells Fargo later held the note and foreclosed.
- Wells Fargo recorded first and second Appointments of Successor Trustee naming Kozeny as successor trustee, asserting it was the lawful holder of Lackey’s 2007 note at those times.
- MERS assigned its interest to Wells Fargo in August 2011, and a Trust Deed foreclosure proceeded under Kozeny’s trusteeship.
- Kozeny, as successor trustee, executed a Trustee’s Deed of sale to Freddie Mac in October 2011, later corrected by a Corrective Trustee’s Deed attaching proper mail receipts.
- Lackey sued in federal court seeking quiet title and alleged irregularities in the foreclosure; the district court granted summary judgment; Lackey appealed, challenging holder status, the show-me-the-note issue, and notice sufficiency.
- The appellate court reviews the grant of summary judgment de novo and affirms, holding Wells Fargo held the note, no requirement to produce the original note pre-foreclosure, and that notice complied with Missouri law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Holder status and foreclose power | Lackey argues Wells Fargo may not have held the note. | Wells Fargo contends it was the lawful holder and could appoint a successor trustee. | Wells Fargo held the note and had power to foreclose. |
| Original note production before foreclosure | Lackey claims the original note must be produced. | Missouri law does not require production of the original note pre-foreclosure. | NoShow-me-the-note requirement; production not required. |
| Notice compliance in non-judicial foreclosure | Lackey claims insufficient notice of foreclosure. | Correct certified mailing receipts show notice was mailed in compliance. | Notice requirement satisfied; no genuine issue of material fact. |
Key Cases Cited
- Bellistri v. Ocwen Loan Servicing, LLC, 284 S.W.3d 619 (Mo. Ct. App. 2009) (note and deed of trust transfer consequences; holder bears enforceable rights)
- U.S. Bank Nat’l Ass’n v. Burns, 406 S.W.3d 495 (Mo. Ct. App. 2013) (holder of note has enforceable rights under the deed of trust)
- Green v. Commerce Bank of St. Louis, N.A., 53 S.W.3d 229 (Mo. Ct. App. 2001) (holder may exercise rights to foreclose after transfer of note rights)
- Mildfelt v. Circuit Court of Jackson Cnty., Mo., 827 F.2d 343 (8th Cir. 1987) (non-judicial foreclosure governed by deed of trust terms)
- Petring v. Kuhs, 171 S.W.2d 635 (Mo. 1943) (recitals in trustee’s deed provide prima facie evidence of notice and sale facts)