Martin v. Lorren

hurdle; ORDER impose high designed it is on its merits allow a matter to be resolved PER CURIAM: are meritorious matters to be where there Appeal judgment of the trial court considered.” Id. granting summary judgment for defendant. therefore, conclude, there were We 84.16(b) Judgment affirmed. Rule materially could factors demonstrated which underlying result of the case. We affect the judgment except reverse the

therefore finding liability compensatory for

portion trial

damages and remand this cause to the in a Failure to do so would result

court. injustice. Because we do not re-

manifest liability compen- judgment as to

verse the

satory damages, con- shall be Martin, interlocutory remaining Tim MARTIN and Jeri with the sidered as Respondents, provided Rule issues to be determined 74.05(b). and Jan John LORREN PARRISH, JJ., concur.

CROW and Lorren, Appellants. No. 19319. Appeals,

Missouri Court District, Southern Division Two.

Dec. 1994. CLAYTON, Appellant, Carl CLAYTON, Respondent.

Roberta

No. 49389. WD Appeals,

Missouri Court of District.

Western 20, 1994.

Dec.

Rehearing Denied Jan. Jr., Jackson, Pottinger, M.

Brace C. Jason City, appellant.

Kansas Buchanan, P. R. Lawrence War-

David James,

shaw, City, re- Kansas Brown &

spondent. C.J., FENNER, and HANNA and

Before

STITH, JJ. December, the trust- gave

ee notice that sold on had defaulted because Defendants sufficiency of the notice is not in loan. The appeal, dispute. pertinent Insofar as would occur: the notice stated day of Wednesday, 20th Janu- “... on 1993, ary, at the South door of the Court- Kennett, City Dunklin in the of house Missouri, the hours of County, between ...” A.M. P.M. 9:00 o’clock and 5:00 provided that the sale was notice further to be “for cash hand.” a.m., began trustee the sale at 9:35 on designated appointed date site. bid, $20,000. highest submitted accepted the and the bidders bid dispersed 10:00 a.m. a.m., day,

At filed a 10:35 Defendants bankruptcy petition in the United States Court, Bankruptcy Eastern District Mis- parties, we understand the souri. As agree bankruptcy filing resulted in Green, Sikeston, appellants. for Jim S. 362, stay” per an 11 U.S.C.A. “automatic Jr., Dalton, Dalton, Hall Treasure John trustee, activity further barring Mowrer, Kennett, respondents. parcel. bank, regard and Tim in to the 12, 1993, February the bank filed a On CROW, Judge. Bankruptcy Court relief motion (“Tim”) Plaintiffs, Tim Martin Jeri 1993, 23, stay. from On March Martin, 9, 1993, eject July filed suit vacating order Bankruptcy Court entered an Defendants, Lorren, John Lorren and Jan per- respect parcel and with to the (“the of real parcel from a one-acre estate “to such other and mitting the bank take petition averred parcel”). Plaintiffs’ property respect further action parcel bought the at a foreclosure sale Janu- they may proper.” ... deem as 20, ary 1993.1 28, 1993, May trustee executed On counterclaimed, averring, inter Defendants parcel Tim. On June conveying deed alia, improper sale was foreclosure $4,000 18, 1993, check the bank received wrong day. it was at the time of held $16,000. In- from Tim and loaned Plaintiffs prayed trial court to declare Defendants by a loan deed ferably, Plaintiffs secured the they owmthe The bank credited of trust on $20,000 against Defendants’ debt. summary judgment. Plaintiffs moved motion, awarding granted court The trial 1993, 19, day, June Plaintiffs The next money possession Plaintiffs on to vacate the served notice occupancy itof damages for Defendants’ did parcel by 1993. Defendants June July 18, starting 1993. comply; this suit followed. exception, With one appeal. points relied first of Defendants’ two infra, is no issue fact. noted on reads: summary granting court erred in money a bank “The Defendants borrowed [Plaintiffs] because the by a of trust securing the loan deed unexplained. plaintiff is Why was a Jeri Martin County 362 of the for foreclosure sales section Bankruptcy stopped only any time States Code limited to between 9:00 a.m. United (stayed) p.m. before it and 5:00 completed. McHaney Judge testify Flake properly A. The foreclosure was not time ... for foreclosure (1) the time conducted sales Dunklin about 10:00 a.m. 9:00 a.m. sale as noticed was to 5:00 ... but some foreclosures are at other p.m. and be held at must therefore no Court times and there is rule or estab- (2) a.m.; and hour of 10:00 practice lished time....” the notice called for the sale to be for appeals of review in The standard cash but the sale instead financed summary judgments is set forth in ITT by the creditor. Corp. Commercial v. Mid-America Finance complete B. The foreclosure (Mo. 854 Supply Corp., Marine S.W.2d 371 payment in cash as advertised 1993). appellate banc The court views the was not received at sale. light in most favorable to the stay C. creditor has admitted the against party whom was entered. into went effect when creditor Id. at The nonmovant is accorded 376[1]. Bankruptcy asked Court to lift the the benefit of all reasonable inferences from stay proceed, to allow it to but the record. Id. at [3]. [sic] foreclosure was not readvertised Viewing way, it the record we hold [sic] nor renoticed after the i.e., issue, presents a is a fact there “custom- lifted.” ary time” for sales in foreclosure Dunklin Plaintiffs moved this Court to dismiss and, so, County if that time a.m.? is 10:00 (and appeal, insisting point the above also question in The relevance of that is found point) second Defendants’ violate the “where 443.327.1, Cum.Supp.1992, § which RSMo why” requirement 84.04(d), in and of Rule reads, in pertinent part: (1994). Rules of Missouri Civil Procedure exercising power “The trustee of sale (Mo. King, Thummel v. See: 570 S.W.2d 679 granted any of inmay in deed trust ... 1978). banc We took Plaintiffs’ motion with the trustee’s discretion set the time for the ease. any commercially sale at reasonable time. Although points para are not The time for will be sale deemed to be digms draftsmanship, of adroit we decline to commercially if reasonable the sale is held appeal. dismiss We have endeavored to of between the 9:00 a.m. and 5:00 hours import points by seining deduce the p.m. If on the date of sale. no time argument that follows them —a chore we sale, in of stated the notice then the sale obliged Draper are not to undertake. customary shall be at the time held Aronowitz, 923, (Mo.App. 695 924[3] S.W.2d county....” such sales in the E.D.1985); Corp., Tennis v. Motors General “(1)” in theory para- of error clause 218, (Mo.App.S.D.1981). graph point, “A” of Defendants’ first as we address We shall the claims error as we it, comprehend progression on a is based them. divine assumptions, each of which must be valid in Paragraph “A” of Defendants’ first prevail. theory assump- order for the it, hinges premise as we fathom on the tions, them, in we understand are set forth “customary hour” paragraphs. the next five County Dunklin is 10:00 a.m. sales customary 1. The time for foreclosure hypothesis, of that support Defendants refer County in Dunklin is 10:00 a.m. stipulation presented to us to a the trial court read, pertinent part: which 2. Because the foreclosure notice here did Dalton, sale, attorneys specific Hall and the not state a time for “John Jr. Dalton, supra, firm of quoted required Treasure and Mowr- testify at 10:00. er would time trustee hold the sale himself, sale, including at began people trustee 3. Because the sale 10:00, stipu- lawyer. trustee’s trustee accepted Tim’s bid 9:35 lation, provided as we read further nullity. auction was a bank, by parcel by there bids nullity 4. Because the auction was Tim and another bidder. activity be- was no further sale-related nothing plead, and Defendants did not stay” went into effect at fore “automatic began suggests, that the trustee the record 10:35,no occurred on the scheduled valid sale poten- limit the the sale 9:35 to number date. any purpose. other ulterior tial bidders or was no sale on the 5. Because there valid not assert new bidders Defendants do conducted no scheduled date and 10:00, up expecting the sale to showed March sale after the was vacated on then, begin argue that the nor do Defendants place; has taken no valid sale ever brought higher price parcel would have had hence, still own the began at 10:00. sup- The lone case cited Assuming, arguendo, Stone, theory port of above Stone time for foreclosure sales (Mo.1944). proposi- The sole a.m., thus whether is 10:00 the issue becomes of law for Defendants cite Stone is tion which § 443.327.1 the auction here because nullifies high if the at a sale bidder foreclosure the cus- began the trustee 25 minutes before comply to the terms of his bid refuses with issue, tomary addressing we time. property the the and trustee elects resell say § not the conse- note 443.327.1does what disperse without but allows the bidders are notice states no quences if the of sale resale, trust- proclaiming the time for starts the time for the sale and trustee Id. ee must re-advertise. at 467. at a other than the time. sale time here. trustee That did not occur The did analysis by recognizing begin We our reject and to resell not Tim’s bid endeavor exercising power of sale that a trustee a parcel. accepted trustee Tim’s bid The required a trust is to exercise under deed of and, vacated, stay” after “automatic was in and to conduct the sale sound discretion to Tim. parcel deeded most benefi manner which renders only if apply would the auction here Stone possible price. to the at the best cial debtor undertook to was invalid and the trustee County v. Com Boatmen’s Bank of Jefferson that fol- For reasons resell Inc., Interiors, munity 721 low, we hold the auction was valid. (Mo.App.E.D.1986). Nothing in the record otherwise, suggests and here the trustee did Pitts, Mo. Judah make no such contention. Plaintiffs, (1933), equity in cited was a suit pur- to set aside a foreclosure sale conducted Furthermore, requiring in power in to a of sale a deed of trust. suant commercially held at a foreclosure sales to be The stated the Id. 62 S.W.2d at 716. notice time, provides a time be- reasonable specify not the hour. Id. date of sale but did a.m., p.m., will be tween 9:00 5:00 Supreme Court Missouri held at 719. of commercially The sale reasonable. deemed sufficient, observing: the notice a.m., here, at having was held begun at 9:35 commercially time. reasonable nothing in tend- “... there is the evidence ing reason of the failure to show that earlier, Finally, the record is observed as hours the state within or between what began any of that the trustee bare indication or persons made sale would be interested any purpose, improper the sale 9:35 pre- prospective bidders were misled demonstrates Defendants ” being present the sale.... vented any way in not because harmed 10:00. begin did the sale at trustee reasons, that even if earlier, we hold provid- For above stipulation, mentioned sales in customary time for foreclosure of would representative that a the bank ed a.m., § County 443.327.1did Dunklin is 10:00 testify and fifteen there were between ten Indeed, $20,000 merely stipulation be- bid. not invalidate the auction here Tim’s $20,000 against provided that was credited began it and ended cause 9:35 before corollary fact Defendants’ debt to the bank. 10:00. The obvious is that the of time whether there issue the record demonstrates Defen- Because (and, foreclosure position as dants the same are is, assuming 10:00 whether the time is $20,000 paid Tim have been had the trustee a.m.) theory require does not reversal. The auction, conclusion cash at the of we “(1)” paragraph error in of of clause “A” “(2)” reject theory of error in clause point first Defendants’ meritless. point. “A” of first paragraph Defendants’ “(2)” theory of error clause Paragraph “B” of Defendants’ first paragraph “A” of Defendants’ first point was not “com asserts is, comprehend theory in we like the paid Tim cash at plete” no the sale. because “(1),” a progression clause based on of as theory of error is that We infer sumptions, each of which must be parcel valid paid Tim after the prevail. assump theory for the order instead of vacated tions, them, effect, as we understand are invalid, set forth it took foreclosure was paragraphs. next three hence Defendants still own authority supporting cite no

1. Because provid- the foreclosure notice hand,” hypothesis. that the ed sale was to “for cash in $20,000 required pay the trustee seen, As we have the order the Bank- accepted when the bid. cash Tim’s ruptcy vacating the allowed the Court bank such other further action to take trustee; paid never cash to the respect to the as the bank paid $4,000 by he bank check and proper. purport The did not deemed order by bank financed the balance of the bid nullify anything to that occurred before the loaning $16,000. Plaintiffs stay That is took effect. consis- paid Because Tim never 3. the trustee proposition tent with the that the automatic $20,000 cash, occurred; no valid sale ever only stay prospectively and is effective does hence, Defendants still own the anything before undo occurs holding Defendants cite no ease that where petition bankruptcy is filed. See: 1 Mo. specifies the foreclosure is to notice the sale (MoBar 1992). Practice, § Bankruptcy 7.3 cash, for is void if sale the successful Brown, The facts here are similar to In re by pays partly by partly bidder check and (Bkrtey.E.D.Pa.1987), by 75 B.R. 1009 cited funds borrowed creditor. There, at a Plaintiffs. the auction fore- 1123, Salisbury, Webb 327 Mo. 39 completed was before auto- closure sale Plaintiffs, (1931), by 1045 an S.W.2d cited effect; however, matic took the success- “failure-to-pay-cash” swers Defendants’ ar yet or paid ful bidder had not received a There, gument. the successful bid at fore Bankruptcy vacated deed. Court $3,800. mortgagors closure sale was steps those taken. Noth- to allow to be aside, to set the complaining sued sale ing opinion suggested that in the the sale had (the bidder of the holder notes secured to be re-advertised and a new auction con- trust) paid by the deed of noth the trustee ducted. ing. Supreme Court of held Missouri Gooden, (Bkrtcy.N.D.Ga. 21 In re B.R. 456 (the mortgagors that inasmuch as the makers Defendants, 1982), by does not cited aid notes) received credit for the entire whether, Georgia dealt with under them. It $3,800 debt, against they their could not com law, mortgagor’s right redemption was Sny 39 plain. 1052[12]. S.W.2d at Accord: accepted extinguished high when the bid was Co., Chicago, Ry. & Mo. der S.F. C. 131 auction, right or survived whether 568, (1895). 67, 33 S.W. paid until received a deed. the bidder

Here, reply do not bank concede in brief that Defendants assert the Defendants their full, them, properly they attempted to to failed credit never redeem. furnish no au- “It is well established Missouri no

Inasmuch as Defendants necessary point, notice or to maintain thority paragraph “B” of their first demand authority against a is con- an unlawful detainer action ten- and the scant exists it, of a trary paragraph holding “B” ant over after the end fixed we find without possession term. continued Defendant merit. beyond fixed in without the term the lease point, Paragraph first “C” of Defendants’ quit consent and no notice landlord’s assump- grasp predicated we premises required.” was and, invalid tion that omitted). (citations 139-40 occurred, new Defendants as no sale ever rescript That is a still own reject- specifically The court in Cusumano contentions Defendants’ first earlier required § ed notion 441.060.1 rejected. Paragraph “C” we have which give occupant a month’s notice. owner no further discussion. Defendants’ warrants The court said: point is first denied. by to in ‘tenancy “The sufferance’ referred by the is not created mere [§ 441.060.1] point, presented second holding by a tenant a fixed term. over after first, their maintains the as an alternative to required only if the Notice would be con ejecting in. them from the trial court erred express holding tinued made with they parcel in that became tenants at suffer implied consent the landlord. Kilb bought ance when Tim Forester, 770, 775- ourne v. days notice” had entitled “30 (Mo.App.1970).” to vacate. Cusumano, n. 1. 139-40 earlier, par- reported paid As here indicates Nothing day, cel 1993. next Plaintiffs June Plaintiffs, bought mani parcel, after Defendants to vacate served notice on way in any that Defendants could fested June contrary, tenants. remain there as On rely on RSMo parcel, prompt Plaintiffs paying after for the 1986, which reads: Although ly notified vacate. may ... tenancy “A ... sufferance auction, months five after occurred person to by the entitled the be terminated prevented the had notice, in possession by giving one month’s parcel Tim for several deeding to writing, person possession, in re- weeks. quiring him remove.” Gebhardt, (1901), Mo.App. Berner ten- support do not Defendants became in We believe lone ease cited Defendants sufferance, meaning of within the is It in- inapplicable. ants their second bought Tim possession when a in the owner volved tenant when foreclosure, occupied property. Before established sold the owners, parcel as not tenants. Defendants a from month occupant that the tenant theory gave an own- authority for the that new never cite no month and the owner is occupying land which sold at foreclosure at 413. proper er notice to vacate. Id. automatically a tenant at sufferance becomes Cusumano, 608 Applying rationale of purchaser. 139-40, we hold that because De- owners, parcel occupied the as addressing fendants

Although find no case we tenants, Inc., bought Today, subject, Cusumano v. Outdoors help- indicated Defendants could (Mo.App.E.D.1980), is Plaintiffs never 608 S.W.2d 136 thereafter, Defendants tenant refused to remain ful. It who involved. sufferance, hence never became tenants upon expiration of fixed-term lease. vacate give require Plaintiffs gave § 441.060.1 did not never tenant maintained owner to vacate. De- Defendants a month’s notice at 139. The proper to vacate. notice point denied. fendants’ second court held: judg “customary end One loose remains. The existed a time” for foreclosure specifically County. in ment did not address sales Dunklin As I understand However, however, majority opinion, granting counterclaim. in Plain it concludes specific in sought, tiffs the relief trial court that when no time is contained notice, implicitly a sale conducted at a time different right, held Defendants had no title “customary than the time” not invalid un- or interest in pleads proves less the owner judgment, by implication, If a neces poten- trustee did so to limit the number sarily finding carries it a upon a coun pur- tial bidders or for some other ulterior terclaim, judgment will be sustained as pose, property brought would have though final even the counterclaim is not higher price had the sale been conducted at Glide, mentioned. Glick v. time,” “customary or that other bidders (Mo.1963). here is suf timing were excluded reason of deny ficient to the counterclaim and to de matters, however, may sale. Proof of those parcel by clare that owns the virtue of instance, may not be available. For a debtor the trustee’s deed. identity not be able determine the Judgment affirmed. participat- existence of those who would have ed had the sale been conducted at the cus- PARRISH, J., concurring concurs and files tomary property time or how much the opinion. brought if pres- have other bidders had been ent. GARRISON, P.J., dissents and files Section 443.327.1 authorizes a foreclosure

dissenting opinion. sale between the hours of 9:00 a.m. and 5:00 PARRISH, Judge, concurring. p.m., doing and in recognizes so However, I concur. I share the concern time within those limits would be “commer- dissenting opinion addressed of Garri- cially provides reasonable.” It then that “[i]f son, J. I write separately in order to ex- sale, no time is stated a notice of then the press that concern. customary sale shall be held at the time county.” such I construe this In this case suggestion there is no that the where, here, statute to mean that no timing of the sale detracted from efficient specific hour for the sale is contained handling honest of the foreclosure sale. notice, it must be conducted at the circumstances, agree Under these I with the time. assessment in principal opinion that the slight might variance from ease, what be the undisputed cus- In the instant it is tomary conducting time for foreclosure sales may the sale commenced before what have However, should not invalidate this sale. majority been the time. The opinion should not opinion emphasizes be taken as carte the variance be- authority disregard blanc customary timing times tween the of the actual sale and what conducting foreclosure sales in in may customary counties have been the time was which there giv- are such customs. slight. my opinion significant, Absent In it is howev- ing er, notice of a definite commencing time for that the sale was both commenced and sale, vary completed prior trustees who from to 10:00 a.m. customary such peril. times do so at their by majority, duty As noted it is the the trustee to conduct the a manner GARRISON, Presiding Judge, dissenting. debtor, which is most beneficial to the which so, respectfully I doing agree dissent. In I obtaining possible price. includes the best portion majority opinion that, with that keeping purposes In of the of a one which concludes that under the standard of apprise public foreclosure sale notice is to required by Oliver, review ITT Commercial Finance of the time of the sale. Graham v. Corp. Supply Corp., v. MidAmerica Marine (Mo.App.S.D.1983). 659 S.W.2d (Mo.1993), genuine 854 S.W.2d 371 Permitting issue of a sale at some time other than fact presented concerning time, customary speci- whether there where no time is notice, in the does little foster

fied suggestions

purpose but would invite instead timing of a sale and would

of collusion from, promote, than confi-

detract rather handling

dence foreclosure sales. Pitts,

Judah cited

majority opinion, also seems to indicate that sales, hour for

if there is such conducted time.

the sale should be approving

In a sale where notice listed

only specifying the date sale without time, acknowledged court indicating poten- either that

was no evidence prevented

tial bidders were misled

being present “or that the sale at the sale made hour for sales

was not at the usual such county.” custom that

as established

at 719. case, this court has conclud- the instant issue of genuine

ed that there is a fact as time for foreclosure

whether was 10:00 a.m. my interpretation on 443.327.1

Based Judah, disagree I with the conclusion of true, that, majority if that even to relief.

Defendants would not entitled above, on I believe the trial

Based sustaining Plaintiffs’ motion

court erred summary judgment. QUILTY, Respondent,

Thomas MART, Defendant,

FRANK’S FOOD

CNA, Respondent, Insurance

National American Appellant.

Company,

No. WD Appeals,

Missouri Court -District.

Western 27, 1994.

Dec.

Case Details

Case Name: Martin v. Lorren

Court Name: Missouri Court of Appeals

Date Published: Dec 20, 1994

Citation: 890 S.W.2d 352

Docket Number: 19319

Court Abbreviation: Mo. Ct. App.