                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-3158
                         ___________________________

                                 CitiMortgage, Inc.

                        lllllllllllllllllllllPlaintiff - Appellant

                                           v.

                         Platinum Home Mortgage, Corp.

                        lllllllllllllllllllllDefendant - Appellee
                                       ____________

                    Appeal from United States District Court
                  for the Eastern District of Missouri - St. Louis
                                  ____________

                          Submitted: September 26, 2018
                             Filed: February 6, 2019
                                 ____________

Before SMITH, Chief Judge, MELLOY and STRAS, Circuit Judges.
                             ____________

MELLOY, Circuit Judge.

       Plaintiff CitiMortgage, Inc. (“CitiMortgage” or “CMI”), a purchaser and
reseller of mortgage loans, sued Defendant Platinum Home Mortgage, Corp.
(“Platinum”), an originator and seller of mortgage loans. CitiMortgage alleged
Platinum breached a contract by failing to repurchase seven allegedly defective loans
after CitiMortgage demanded repurchase by sending multiple notices to Platinum for
each loan. The district court granted summary judgment for Platinum, holding
CitiMortgage failed to satisfy a condition precedent contained in the agreement by
failing to prescribe a time within which Platinum could correct or cure the alleged
defects. Because we conclude CitiMortgage adequately and substantially complied
with the contract (which neither specified a form of notice nor indicated that the
prescription of a time for cure had to be contained within the notice), we reverse.

                                   I. Background

       Platinum originated mortgage loans. CitiMortgage bought approximately 750
loans from Platinum for more than $140 million. This case involves seven of those
loans (valued around $1 million). CitiMortgage had resold the loans at issue in this
case to Fannie Mae but was forced by Fannie Mae to repurchase the loans due to
Platinum’s alleged failures to comply with underwriting standards.

      The agreement between Platinum and CitiMortgage was a February 13, 2004
agreement supplemented with an October 14, 2004 addendum. The addendum
addressed the delegation of underwriting/loan-origination authority to Platinum and
was added years before loan origination for the seven loans at issue in this case.
Relevant to the present case, the addendum purported to “add” terms to an existing
“Section 11” of the original agreement. By the time the loans at issue in the present
case were originated and sold, the underlying agreement between CitiMortgage and
Platinum was one integrated agreement. Although we refer to the agreement and to
the addendum when identifying specific sources of contractual terms, there is only
one integrated agreement at issue in this case.

       Pursuant to the agreement, CitiMortgage possessed discretion to determine if
a loan under the agreement was defective. This discretion included the right to
determine if Platinum had breached the standards applicable for underwriting the
loans and to determine if CitiMortgage itself was required to repurchase a loan it had
resold to a third party (such as Fannie Mae). This discretion was broad in that it was

                                         -2-
subject to no express limitations and was identified as CitiMortgage’s “sole and
exclusive discretion.”

       The contract provided that Platinum was to be afforded an opportunity to
correct or cure an alleged defect and that, absent correction or cure to CitiMortgage’s
“complete satisfaction,” Platinum could be required to repurchase the loan.
Moreover, if CitiMortgage itself was required to repurchase a loan after sale to a third
party, CitiMortgage could assert the fact of that third party’s demand for repurchase
as grounds to demand Platinum, in turn, repurchase that same loan.

      The material contract provisions of the original agreement (with emphasis
added) are as follows:

      11.     CURE OR REPURCHASE

      If CMI [CitiMortgage], in its sole and exclusive discretion, determines
      any Loan purchased pursuant to this Agreement:

      (i)     was underwritten and/or originated in violation of any term,
              condition, requirement or procedure contained in this Agreement
              or the CMI Manual in effect as of the date CMI purchased such
              Loan;
      (ii)    was underwritten and/or originated based on any materially
              inaccurate information or material misrepresentation made by the
              Loan borrower(s), Correspondent, Correspondent’s directors,
              officers, employees, agents, independent contractors and/or
              affiliates, or any other party providing information relating to said
              Loan;
      (iii)   was or is capable of being rescinded by the applicable
              borrower(s) pursuant to the provisions of any applicable federal
              (including but not limited to the Truth-In-Lending Act) or state
              law or regulation;
      (iv)    must be repurchased from any secondary market investor
              (including but not limited to the Fannie Mae, Freddie Mac, FHA,

                                           -3-
            VA, HUD or Government National Mortgage Association) due to
            a breach by Correspondent of any representation, warranty or
            covenant contained in this Agreement or the CMI Manual or a
            failure by Correspondent to comply in all material respects with
            the applicable CMI Manual terms, conditions, requirements and
            procedures; and/or
      (v)   was subject to an Early Payment Default (as defined in the CMI
            Manual), an Early Payoff (as defined in the CMI Manual) or any
            other payment related defect (as defined in the CMI Manual)

      Correspondent will, upon notification by CMI, correct or cure such
      defect within the time prescribed by CMI to the full and complete
      satisfaction of CMI. If, after receiving such notice from CMI,
      Correspondent is unable to correct or cure such defect within the
      prescribed time, Correspondent shall, at CMI’s sole discretion, either (i)
      repurchase such defective Loan from CMI at the price required by CMI
      (“Repurchase Price”) or (ii) agree to such other remedies (including but
      not limited to additional indemnification and/or refund of a portion of
      the Loan purchase price) as CMI may deem appropriate. If CMI
      requests a repurchase of a defective Loan, Correspondent shall, within
      ten (10) business days of Correspondent’s receipt of such repurchase
      request, pay to CMI the Repurchase Price by cashier’s check or wire
      transfer of immediately available federal funds . . . .

      Correspondent agrees and acknowledges that the provisions of this Sec.
      11 do not, in any way, eliminate, diminish or impair Correspondent’s
      indemnification obligations contained in Sec. 10.

And, in the addendum, the additional provisions for Section 11 state:

      Correspondent expressly agrees that it shall underwrite each Loan in
      conformity with the applicable underwriting criteria of CMI. If an audit
      by CMI on any Loan reveals that it was underwritten in violation of the
      applicable CMI underwriting criteria, Correspondent will, not later
      than thirty (30) days after receipt of written notice from CMI,
      repurchase the Loan at the Repurchase Price or provide CMI with
      written evidence as to why Correspondent believes such underwriting

                                         -4-
      criteria was not violated. If, after reviewing Correspondent’s written
      evidence, CMI, in its sole and independent discretion, determines the
      Loan was not originated in accordance with the applicable
      underwriting criteria, Correspondent will, not later than thirty (30) days
      after receiving further written notice from CMI, repurchase the Loan
      at the Repurchase Price specified in the Agreement, Manual and/or
      applicable Bulletin(s).

      Here, after Fannie Mae informed CitiMortgage that there were defects in the
mortgages, CitiMortgage sent three letters to Platinum for each of the seven loans
(twenty-one letters in total).

       As to each separate loan, a first letter: (1) identified a “potential breach” and
described that breach; (2) invited Platinum to investigate the matter and send a
“written response along with any supporting documentation” within “thirty days”;
and (3) notified Platinum that if CitiMortgage did not find the resolution satisfactory,
repurchase may be required.

        As to each loan, after more than the expressly identified thirty days had passed,
CitiMortgage sent a second letter describing the breach and stating repurchase was
required. Again, CitiMortgage cited a deadline of thirty days. CitiMortgage’s second
letter as to each loan expressly stated, “Please contact me upon receipt of this letter
to confirm the repurchase date on or before thirty (30) days from the date of this
letter.”

      As to each loan, again after more than the expressly identified thirty days had
passed, CitiMortgage sent a third letter. In the third letter as to each loan,
CitiMortgage again described the breach and stated repurchase was required and
needed to be confirmed “on or before thirty (30) days from the date of this letter.”
For several of the loans, CitiMortgage made express reference to having received
documentation or explanation from Platinum in response to earlier letters and having


                                          -5-
determined such responses were not satisfactory. For other loans, CitiMortgage
expressly noted that Platinum had not responded.

       More than two years after sending the last letter for the seventh loan,
CitiMortgage filed the present suit. Platinum moved for summary judgment, arguing
(1) CitiMortgage could not force repurchase because the agreement had been
terminated; (2) CitiMortgage could not force repurchase because CitiMortgage had
already foreclosed on the underlying mortgage loans; and (3) CitiMortgage failed to
satisfy a condition precedent in that CitiMortgage did not prescribe a time for cure
or correction.

      The district court addressed only the third issue. The district court concluded
CitiMortgage did not provide adequate notice because CitiMortgage did not expressly
“prescribe” a time for Platinum to correct or cure the alleged defects. In reaching this
conclusion, the district court determined that the agreement placed a condition
precedent upon Platinum’s repurchase duty. According to the district court, the
phrase “upon notification by CMI, correct or cure such defect within the time
prescribed by CMI to the full and complete satisfaction of CMI,” meant that unless
and until CitiMortgage expressly told Platinum a date by which it must correct or cure
a defect, Platinum could not know when the window for cure had closed and,
therefore, could not be forced to repurchase a loan.

        The district court did not view the letters’ repeated and express references to
thirty-day response times as satisfying the condition precedent. As to the first set of
seven letters, the district court concluded they did not satisfy the notice provisions
because each referenced a “possible” breach, indicating CitiMortgage had not yet
concluded a defect, in fact, existed. As to this point, the district court also found
CitiMortgage had effectively conceded that the first set of letters did not give notice
of the alleged defects because, in briefing to the district court, CitiMortgage stated,
“It is in the [second set of letters], not the [first set of letters], where [CitiMortgage]

                                           -6-
states that it has determined the loan is defective and specifies the defect.”
CitiMortgage contested any such concession.

      Regarding the second set of letters, the district court noted the parties’
disagreement as to whether CitiMortgage’s failure to use the terms “correct” or “cure”
was fatal to CitiMortgage’s argument. The district court concluded it need not
resolve the issue because the letters failed to expressly prescribe a time for cure or
correction.

       Finally, the district court held the addendum’s reference to a thirty-day
response time did not serve as the prescription of a time for cure or correction. The
district court, instead, concluded (1) the thirty-day period set forth in the addendum
applied to an appeal process rather than to the opportunity to cure, and (2) the thirty-
day period referenced in the addendum could only be triggered following a formal
audit. In this respect, the district court acknowledged that another district court judge
in the same district had reached the opposite conclusion on indistinguishable facts.
See Citimortgage, Inc. v. Chicago Bankcorp, Inc., No. 4:14CV01278, 2016 WL
3958594 (E.D. Mo. July 22, 2016). In fact, the district court described the court’s
analysis in the other case as “conflat[ing]” the procedures in the original agreement
and in the addendum. The district court in the current case then concluded, “The
Court sees no reason why it should excuse CMI from express compliance with the
notice and cure requirements set forth in the Agreement which CMI itself drafted.”

       CitiMortgage filed a motion to reconsider, arguing that the unexpected
rejection of the other district judge’s position in the similar case from the same
district took CitiMortgage by surprise. With the motion to reconsider, CitiMortgage
sought to supplement the record with a large volume of additional materials.
Platinum contested the motion and argued CitiMortgage should not be allowed to
supplement the record. The district court summarily denied the motion.



                                          -7-
                                    II. Discussion

       We review the grant of summary judgment de novo. Torgerson v. City of
Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). Here, the language of the
agreement is undisputed and the letters, as described above and as quoted in the
district court’s opinion, are in the record. Missouri law applies, and in Missouri,
“[t]he interpretation of a written contract is a matter of law for the court.” Union
Elec. Co. v. Sw. Bell Tel. L.P., 378 F.3d 781, 786 (8th Cir. 2004). Our de novo
review of contract interpretation as a matter of law includes the determination of
whether a written contract imposes a condition precedent. Id. at 788.

       As an initial matter, we question whether the prescription of a time for
Platinum to correct or cure an alleged breach is a condition precedent. In Missouri,
conditions precedent are disfavored. See James E. Brady & Co. v. Eno, 992 F.2d 864,
869 (8th Cir. 1993) (“Courts should not construe contract provisions to be conditions
precedent ‘unless required to do so by plain, unambiguous language or by necessary
implication.’” (quoting Kansas City S. Ry. v. St. Louis–San Francisco Ry., 509
S.W.2d 457, 460 (Mo. 1974))). As such, where it is not necessary to interpret a
contract provision as establishing a condition precedent, the court should not do so.
See id. at 869–70 (finding a contract provision did not create a condition precedent
where “an alternative construction of the repayment language [was] clearly
reasonable”). Here, the sophisticated parties undeniably were aware of their rights
and obligations. The right to attempt cure is plain from the face of the agreement, and
the notice provisions surrounding that right do not unambiguously set forth the
designation of a temporal limitation as a condition precedent to CitiMortgage’s right
to force repurchase. Union Elec., 378 F.3d at 788 (“Had the parties wished to require
compliance with [a safety code] as a precondition to liability . . . they could have said
so.”).




                                          -8-
       Platinum argues the notice provision may only be interpreted as a protection
for Platinum strictly constraining CitiMortgage’s right to force repurchase. The
notice provision, however, contains no language suggesting the right to force
repurchase is conditional. The notice provision, of course, indicates a time for
attempting cure—after Platinum is made aware of the defect. The contested provision
also empowers CitiMortgage to place a limit upon that time. If CitiMortgage elects
not to exercise its right by failing to limit that time period, and instead sends multiple
letters and delays before instituting suit, CitiMortgage has simply elected not to
exercise its own right. In effect, the time aspect of the notice provision appears to
define a right for CitiMortgage rather than a condition precedent meant to protect
Platinum. As such, even if CitiMortgage had not chosen to include time limits in its
many letters, its failure to do so should not be viewed as wholly eliminating
Platinum’s obligation to repurchase defective loans.

       Regardless, we need not decide the issue of whether the contested provision
imposes a condition precedent. Even if the prescription of a time for cure were a
condition precedent, CitiMortgage’s three letters concerning each individual loan
sufficed to satisfy CitiMortgage’s notice obligations. Each of the three letters for
each of the seven loans listed a thirty-day window for action. And, as to each
individual loan, the second and third letters did not arrive unannounced and in a
vacuum. Therefore, as to each loan, the corresponding three letters must be viewed
collectively. Collectively, each set of three letters identified a defect, invited written
responses with supporting documentation, and identified a deadline.

       Critically, nothing in the original agreement states that the time “prescribed”
for cure or correction had to be in writing, much less wholly communicated within
one individual writing. In fact, the agreement does not indicate what form
CitiMortgage’s notice of defect or prescription of time for cure or correction had to
take. The agreement also fails to indicate that CitiMortgage must use specific
triggering words such as “cure or correct.” In short, the form of notice required by

                                           -9-
an agreement depends upon the agreement, and the clear and repeated notice provided
in this case satisfied the vague requirements of the agreement. See Gray v. Bicknell,
86 F.3d 1472, 1479 (8th Cir. 1996) (“Under Missouri law, the nature of notice
required by contract depends upon the provisions of that contract.”). The parties in
this case are sophisticated and the right to cure is plain on the face of the agreement.
Platinum was put on notice of alleged defects, and given repeated thirty-day periods
followed by an extensive delay prior to suit that provided more than adequate
opportunity to attempt cure. Id. (“[Missouri law] does not require that notice of
breach, to be effective, must be the clearest statement possible.”); Schaefer v. Rivers,
965 S.W.2d 954, 957 (Mo. Ct. App. 1998) (noting that unless a contract expressly
specifies otherwise, “substantial compliance” is sufficient).

       The parties present several other arguments, many of which involve vigorous
disputes as to whether arguments were timely made below, properly supported, and
adequately preserved. For example, CitiMortgage asserts arguments addressing: (1)
actual notice; (2) futility; (3) lack of harm; and (4) use of the addendum’s thirty-day
period as the prescribed period for cure. Given our resolution of the case as set forth
above, we need not address these issues.

      We reverse the judgment of the district court and remand for further
proceedings consistent with this opinion.1

                        ______________________________


      1
         We deny the pending motion to unseal the appellant’s addendum. We do not
address the grounds for summary judgment raised below and not addressed by the
district court, namely, Platinum’s arguments that CitiMortgage could not force
repurchase because the agreement had been terminated and because CitiMortgage had
foreclosed on the properties securing the loans. We leave to the district court in the
first instance the resolution of these issues and any related issues concerning the state
of the record.

                                          -10-
