OPINION AUTHOR
Dave R. Williams (“Mr. Williams”) and his wife Candice J. Williams (“Mrs. Williams”) (collectively “Appellants”) appeal from the trial court’s grant of summary judgment in favor of HSBC Bank USA, N.A. (“HSBC”). Appellants raise eleven points on appeal. We disagree with their arguments and affirm the trial court’s judgment.
Factual and Procedural Background
In 2007, Appellants obtained a loan to purchase a home and signed a deed of trust on the property securing repayment of the loan. Shortly thereafter, Appellants learned the servicing of the loan had been transferred to HSBC.
Beginning in 2008, Appellants failed to make payments on the loan. On July 8, 2009, HSBC sent a letter to Mr. Williams informing him the loan was in default in the amount of $25,171.28. HSBC appointed Milsap & Singer, P.C. (“the successor trustee”) as successor trustee under the deed of trust.
During the fall of 2009, Appellants discussed a loan modification with HSBC. However, on Octobеr 16, 2009, Appellants received a letter from HSBC informing them their request for assistance was denied. Around the same time, the successor trustee sent Appellants a notice of trustee’s sale.
On November 8, 2009, the successor trustee conducted a foreclosure sale. Appellants were not current on their mortgage payments and did not attend the foreclosure sale. 1 On November 4, 2009, the successor trustee recorded a Successor Trustee’s Deed Under Foreclosure that listed CIBM HSBC Bank USA (“CIBM”) as the grantee.
On November 17, 2009, HSBC’s attorneys sent Appellants a notice to vacate by certified mail. 2 Appellants did not vacate the property. Instead, Appellants continued to discuss the situation with HSBC’s representatives.' At no time did Appellants ever tender full payment of the amount due under the nоte. 3
On December 4, 2009, CIBM sued Appellants for unlawful detainer. During the course of that lawsuit, the parties discovered CIBM was not a legal entity. Thus, that suit for unlawful detainer was dismissed. HSBC filed a corrected Successor Trustee’s Deed Under Foreclosure which listed HSBC as the grantee instead of CIBM.
4
Meanwhile, Appellants sued HSBC alleging several counts. On March
Ultimately, the cases were consolidated, and both pаrties sought summary judgment regarding the claims raised in Appellants’ petition. On March 4, 2014, the trial court entered summary judgment for HSBC and against Appellants on all the counts in Appellants’ petition. At the same time, the trial court set HSBC’s unlawful detainer claim for trial. On April 10, 2014, HSBC sought summary judgment on its unlawful detainer claim. The trial court granted HSBC’s motion, and Appellants appeal.
Standard of Reviéw
“Appellate review of summary judgment is
de novo.” Roberts v. BJC Health System,
Discussion
Appellants raise numerous points challenging the trial court’s grant of summary judgment in favor of HSBC. 5 For ease of analysis, we address their points out of order.
Point III, Point VI, and Point VII: Quiet Title
In three points, Appellants challenge the trial court’s grant of summary judgment to HSBC on Appellants’ claim for quiet title. These points are based on the theory that the Successor Trusteе’s Deeds Under Foreclosure were void because the first Successor Trustee’s Deed listed CIBM, a nonexistent entity, as the grantee and a void deed cannot be corrected. All three of these points fail because the undisputed material facts show that by the time those deeds were executed, Appellants had already lost title to the property.
As a defending party on the quiet title сlaim, HSBC could show a right to judgment as a matter of law by presenting undisputed “facts that negate
any one
of the claimant’s elements facts[.]”
ITT,
In the present case, the undisputed material facts show HSBC had superior title due to the foreclosure sale. “A valid trustee’s foreclosure sale transfers all legal and equitable interests in the property to the purchaser at the sale, subject only to a statutory right of redemption if reserved by the debtor as provided by the stаtute.”
In re Tucker,
Here, the undisputed material facts show that (1) Appellants were in default at the time of the foreclosure sale, (2) the necessary notices for the foreclosure sale were sent to the primary residence of Appellants, and (3) Appellants did not attend the foreclоsure sale. Thus, at the end of the auction, Appellants lost title to the property, and they cannot prove superior title to HSBC by arguing about any errors, alleged or otherwise, in the preparation of the Successor Trustee’s Deeds.
In support of their argument to the contrary, Appellants rely primarily on
Allmon v. Gatschet,
Point III, Point VI, and Point VII are denied.
Point II, Point IV, and Point V: Unlawful Detainer
In Point II, Point IV, and Point V, Appellants challenge the trial court’s grant of summary judgment to HSBC on HSBC’s claim for unlawful detainer and its associated denial of Appellants’ motiоn for summary judgment on that claim. 6 The arguments are essentially the same as those made in the quiet title points. We disagree with the arguments raised in these points.
HSBC was the claimant in the unlawful detainer action. Thus, to obtain summary judgment, it had to show “that there is no genuine dispute as to those material facts upon which [HSBC] would have had the burden of persuasion at trial.”
ITT,
In the present case, there is no dispute regarding each of the .essential elements of HSBC’s claim for unlawful detainer. In their response tо HSBC’s statement of undisputed material facts, Appellants admitted that the foreclosure sale occurred and that they did not vacate the property. Although they purported to challenge HSBC’s statement that they received notice of the sale via certified mail, that statement was deemed admitted because Appellants did not cite to the discovery or affidavits in support of their denial. See Rule 74.04(c)(2) (“A response that does not comply with this Rule 74.04(c)(2) ... is an admission of the truth of that numbered paragraph.”).
Point II, Point IV, and Point V are denied.
Point XI: Jury Trial Right
In Point XI, Appellants argue the grant of summary judgment on HSBC’s unlawful detainer claim was error because it denied Appellants their right to trial by jury as guaranteed by Article I, Section 22(a) of the Missouri Constitution. We disagree.
Article I, Section 22(a) of the Missouri Constitution provides “[t]hat the right of trial by jury as heretofore enjoyed shall remain inviolate[.]” Determining whether a statutory provision violates this constitutional mandate requires a two-part analysis.
Watts v. Lester E. Cox Medical Centers,
Under this framework, permitting summary judgment in an unlawful detainer action doеs not violate the right to jury trial as it existed when Missouri became a state. In unlawful detainer actions, “[either party shall have the right to a jury trial if a timely request therefore is made as in other civil cases.” § 534.160, RSMo (2000). The inclusion of the language “as in other civil cases” indicates that, despite the fact that unlawful detainer is a summary proceeding with special rules, meaningful guidance may be drawn -from other сivil actions where a party has argued summary judgment violated the Missouri constitutional right to jury trial. In ordinary civil cases, when the requirements of Rule 74.04 are met, a grant of summary judgment does not violate the Missouri constitutional right to a jury trial.
Community Fin. Credit Union v. Lind,
Point XI is denied.
Point I: Missouri Merchandising Practices Act
In their first point, Appellants argue the trial cоurt erred in granting summary judgment with respect to their Missouri Merchandising Practices Act (“the MMPA”) claim. We disagree.
As a defending party on the MMPA claim, one way HSBC could show a right to judgment as a matter of law was to show undisputed facts which “negate
any one
of the claimant’s elements faets[.]”
ITT,
The MMPA claim in this case was based on an alleged representation made while Appellants negotiated with HSBC for a forbearаnce or loan modification. However, the undisputed facts show Appellants will not be able to prove an ascertainable loss caused by that alleged representation as required by the statute and its associated case law. An ascertainable loss is a necessary element of a claim under the MMPA.
See Roberts,
Appellants suggest they suffered an ascertainable loss in the form of losing their home to foreclosure. While it is true that such a loss may be the basis for an MMPA claim,
see In re Shelton,
Point I is denied. 7
Point VIII: Abuse of Process
In their eighth point, Appellants argue the trial court erred in granting summary judgment to HSBC on Appellants claim of abuse of prоcess. We disagree.
Again, on this claim HSBC was a defending party, so one way HSBC could show a right to judgment as a matter of law was to show undisputed facts which “negate
any one
of the claimant’s elements facts[.]”
ITT,
Here, the petition in both the first unlawful detainer action and in the second unlawful detainer action sought possession of the property. There is nothing in the summary judgment record indicating HSBC ever sought anything else. The arguments Appellants raise about the Successor Trustee’s Deeds Under Foreclosure do not change the goal of the litigation.
Point VIII is denied.
Point IX: Sec. 514.205 Claim
In their ninth point, Appellants argue it was error to grant summary judgment to HSBC on their claim for sanctions for unfounded pleadings, motions, and papers. We disagree.
In their petition and their brief, Appellants cited Section 514.205 in support of their claim for damages for frivolous proceedings. That statute is generally treated as interchangеable with Rule 55.03(d).
Bothe v. Bathe,
Point IX is denied.
Point X: Negligent Misrepresentation
In their tenth point, Appellants argue it was error to grant summary judgment to HSBC on Appellants’ negligence claim. We disagree.
On the negligence claim, HSBC was a defending party. Thus, one way HSBC could show a right to judgment as a matter of law was to show undisputed facts which “negate
any one
of the claimant’s elements facts[.]”
ITT,
(1) the speaker supplied information in the course of his business; (2) because of the speaker’s failure to exercise reasonable care, the information wás false; (3) the information was intentionally provided by the speaker for the guidance of limited persons in a particular business transaction; (4) the hearer justifiably relied on the information; and (5) due to the hearer’s reliance on the information, the hеarer suffered a pecuniary loss.
Coverdell v. Countrywide Home Loans, Inc.,
In support of their claim, Appellants rely on two sets of alleged misrepresentations. First, they discuss numerous letters they received prior to the foreclosure which informed them of possible loan modifications and programs to assist them in saving their home. Second, they cite the November 2009 letter they received after
Mere predictions about future behavior are typically not sufficient to meet the first element of a claim for negligent misrepresentation. See Massie v. Colvin, 373 S.W.3d 469, 472 (Mo.App.S.D. 2012). The statements in the first group of letters were mere predictions and statements of intent. The letters indicated HSBC wanted to help salvage the loan, but made no affirmative representation regarding Appellants eligibility for such programs. The letters discussed attempts to find a “possible alternative” but the letters made no guarantees. As such, the statemеnts were not the type which may form the basis for a claim of negligent misrepresentation.
As for the post-foreclosure letter, it is clear Appellants did not rely on it in taking or failing to take any actions. “The test of whether a plaintiff relied upon a misrepresentation is simply whether the representation was a material factor influencing final action.”
Stein v. Novus Equities Co.,
Here, although the letter' made a representation that the forеclosure would be reevaluated if Appellants complied with the terms of the forbearance agreement, Appellants did not enter into the forbearance agreement. By their own admission they did not sign the agreement or make any payments under the agreement. Furthermore,, by the time they received that communication, the event about which they complain, the foreclosure, hаd already taken place. Consequently, even if the statements in the post-foreclosure letter were negligently made, Appellants could not succeed on this claim because the uncon-tradicted material facts negate the element of reliance.
Point X is denied.
Decision
The trial court’s judgment is affirmed.
Notes
. This fact is deemed admitted because Appellants did not accompany their denial with "specific referencеs to the discovery, exhibits or affidavits that demonstrate specific facts showing that there is a genuine issue for trial.” Rule 74.04(c)(2). All Rule references are to Missouri Court Rules (2014).
. This fact is deemed admitted because Appellants did not accompany their denial with “specific references to the discovery, exhibits or affidavits that demonstrate specific facts • showing that there is a genuine issue for trial.” Rulе 74.04(c)(2).
. This fact is deemed admitted because Appellants did not accompany their denial with "specific references to the discovery, exhibits or affidavits that demonstrate specific facts showing that there is a genuine issue for trial." Rule 74.04(c)(2).
. This fact is deemed admitted because Appellants did not accompany their denial with "specific references to the discovery, exhibits or affidavits that demonstrate specific facts showing that there is a genuine issue for trial.” Rule 74.04(c)(2).
. After the briefing cycle was complete, Appellants filed a motion to strike the "Introduction” section of HSBC’s brief. Rule 84.04 requires that all factual assertions in a brief be supported by "specific page references to the relevant portion of the record on appeal, i.e., legal file, trаnscript, or exhibits.” Rule 84.04(c); Rule 84.04(e); Rule 84.04(f). The "Introduction” section of HSBC’s brief does not contain specific page references to the record on appeal. The motion to strike is granted.
. Although the general rule is that "[d]enial of a motion for summary judgment does not present an appealable issue[,]”
Bolivar Insulation Co. v. Bella Pointe Dev., L.L.C.,
. Appellants also filed a motion for attorney fees on appeal in connection with the MMPA claim.
See
§ 407.025.1, RSMo (2000). Under the plain language of the statute attorney's fees may be awarded only to a prevailing party.
Id.
A "prevailing party" is “[a] party in whose favor a judgment is rendered, regardless of the amount of damages awarded.”
Matthes v. Wynkoop,