DAVE R. WILLIAMS and                      )
CANDICE J. WILLIAMS,                      )
                                          )
       Plaintiffs-Appellants,             )
                                          )
vs.                                       )      No. SD33364
                                          )
HSBC BANK USA, N.A.,                      )      Filed: April 14, 2015
                                          )
       Defendant-Respondent.              )

         APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

                 Honorable Michael J. Cordonnier, Circuit Judge

AFFIRMED


       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 October 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 3, 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 note.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


1 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). All Rule references are to Missouri Court
Rules (2014).
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).
3
  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).

                                                2
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 7, 2011, HSBC sued Appellants in unlawful detainer.

        Ultimately, the cases were consolidated, and both parties 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 Review

        "Appellate review of summary judgment is de novo." Roberts v. BJC

Health System, 391 S.W.3d 433, 437 (Mo. banc 2013). That is, "[t]he criteria

on appeal for testing the propriety of summary judgment are no different from

those which should be employed by the trial court to determine the propriety of

sustaining the motion initially." ITT Commercial Fin. Corp. v. Mid-

America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993).

"Summary judgment is appropriate when the moving party has demonstrated, on

the basis of facts as to which there is no genuine dispute, a right to judgment as a

matter of law." Roberts, 391 S.W.3d at 437. Furthermore, a grant of summary




4
 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).

                                                3
judgment "can be affirmed on appeal by any appropriate theory supported by the

record." Id.

                                            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 Trustee'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 claim, 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, 854 S.W.2d at 381. "A suit to quiet title

is a special statutory action to adjudge the respective estates, titles and interests

of several claimants to land[.]" Sharp v. Crawford, 313 S.W.3d 193, 199 (Mo.

App. S.D. 2010). In such an action, "the burden of proof is upon each party to

prove better title than that of his adversary." Id. (quoting McCord v. Gates,

5After 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, transcript,
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.

                                                    4
159 S.W.3d 369, 374 (Mo. App. W.D. 2004)). "A claimant must prevail on the

strength of his own title and not upon any weakness in the title of the other

party." Robertson v. North Inter-River Drainage Dist., 842 S.W.2d 544,

546 (Mo. App. S.D. 1992).

       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 statute." In re Tucker, 290 B.R. 134, 136 (E.D. Mo. 2003)

(applying Missouri law). Additionally, "[a] foreclosure sale is complete at the end

of the auction." Id. at 136-37.

       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 foreclosure 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, 437 S.W.2d 70 (Mo. 1969), for the proposition that a deed

to a nonexistent corporation is void. That case is inapposite because title to the

real estate in that case depended on the validity of the deed, see id. at 74, while

here title to the real estate depends upon the validity of the foreclosure sale. See

Wells Fargo Bank, N.A. v. Smith, 392 S.W.3d 446, 462 (Mo. banc 2013).

                                          5
        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' motion 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, 854 S.W.2d at 381. "An action for unlawful detainer is a limited

statutory action where the sole issue to be decided is the immediate right of

possession to a parcel of real property." Federal Nat. Mortg. Ass'n. v.

Wilson, 409 S.W.3d 490, 495 (Mo. App. E.D. 2013); § 534.030.1, RSMo Cum.

Supp. (2014). Where such a claim is based on foreclosure, the elements the

claimant must prove are: "(1) that the property was purchased at a foreclosure

sale, (2) the defendant received notice of the foreclosure, and (3) the defendant

refused to surrender possession of the property." Wilson, 409 S.W.3d at 495.

Additionally, "in such cases, the foreclosure purchaser's right to possession is



6
 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., 166 S.W.3d
610, 614 (Mo. App. S.D. 2005), there is an exception to this where a denial of a motion for
summary judgment may be reviewed if the issues it presents are intertwined with a converse
motion for summary judgment which was granted. Seay v. Jones, 439 S.W.3d 881, 887 (Mo.
App. W.D. 2014). Here, Appellants present essentially the same argument in support of Point V
as they present in support of Point II—that the first Successor Trustee's Deed Under Foreclosure
was void and could not be corrected. Thus, it is appropriate to review the claim.

                                                6
based upon the fact of the sale as demonstrated by the deed, not on the ultimate

validity of the title that the deed reflects." Smith, 392 S.W.3d at 462.

       In the present case, there is no dispute regarding each of the essential

elements of HSBC's claim for unlawful detainer. In their response to 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, 376 S.W.3d 633,

637-38 (Mo. banc 2012). First, the court must determine whether the claim falls

within the scope of the jury right as it existed when Missouri became a state. Id.



                                         7
at 638. Next, the court must determine whether the right remains free from

change. Id.

       Under this framework, permitting summary judgment in an unlawful

detainer action does not violate the right to jury trial as it existed when Missouri

became a state. In unlawful detainer actions, "[e]ither 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 civil 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,

344 S.W.3d 875, 878 (Mo. App. S.D. 2011). As discussed above, the grant of

summary judgment was proper in this case. There was no violation of Appellants'

right to a jury trial.

       Point XI is denied.

               Point I: Missouri Merchandising Practices Act

       In their first point, Appellants argue the trial court 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 facts[.]" ITT, 854 S.W.2d at 381. The MMPA

                                           8
makes it unlawful to use unfair or deceptive practices "in connection with" the

sale of merchandise, including services. Watson v. Wells Fargo Home

Mortg., Inc., 438 S.W.3d 404, 407 (Mo. banc 2014). In a private cause of

action under the MMPA, "a plaintiff must demonstrate that she: (1) purchased

merchandise (which includes services) from the defendants (2) for personal,

family, or household purposes and (3) suffered an ascertainable loss of money or

property (4) as a result of an act declared unlawful under section 407.020."

Edmonds v. Hough, 344 S.W.3d 219, 223 (Mo. App. E.D. 2011).

       The MMPA claim in this case was based on an alleged representation

made while Appellants negotiated with HSBC for a forbearance 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, 391 S.W.3d at 438.

Moreover, "a plaintiff's loss should be a result of the defendant's unlawful

practice[.]" Plubell v. Merck & Co., Inc., 289 S.W.3d 707, 714 (Mo. App.

W.D. 2009).

       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, 481 B.R. 22 (W.D. Mo. 2012) (applying

Missouri law), the undisputed material facts show HSBC's alleged violations did

not cause the loss. The foreclosure occurred because Appellants had not paid

their mortgage in several months. Nothing about any representations made

during the negotiation for a forbearance agreement or loan modification changed

                                         9
that fact, especially considering the undisputed fact that Appellants never

accepted the offered forbearance agreement.

       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 process. 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, 854 S.W.2d at 381. The

elements of a claim of abuse of process are: "(1) the present defendant made an

illegal, improper, perverted use of process, a use neither warranted nor

authorized by the process; (2) the defendant had an improper purpose in

exercising such illegal, perverted or improper use of process; and (3) damage

resulted." Ritterbusch v. Holt, 789 S.W.2d 491, 493 (Mo. banc 1990). "The

essence of a claim for abuse of process is the use of process for some collateral

purpose." Jenkins v. Revolution Helicopter Corp., Inc., 925 S.W.2d 939,

945 (Mo. App. W.D. 1996). Thus, "[i]f the action is confined to its regular and

legitimate function in relation to the cause of action stated in the complaint there

is no abuse even if the plaintiff had an ulterior motive in bringing the action, or if


7
 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,
435 S.W.3d 100, 111 (Mo. App. W.D. 2014) (quoting Black's Law Dictionary 1232 (9th ed. 2009)) .
Appellants did not obtain a judgment in their favor on their MMPA claim. The motion for
attorney fees is denied.

                                              10
he knowingly brought suit upon an unfounded claim." Id. (quoting Wells v.

Orthwein, 670 S.W.2d 529, 532 (Mo. App. E.D. 1984)).

       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 interchangeable with Rule 55.03(d). Bothe v. Bothe, 266

S.W.3d 321, 328 n.11 (Mo. App. E.D. 2008). A request for sanctions under these

authorities is almost universally brought by motion in an already pending action.

See, e.g., id. at 328; Robin Farms, Inc. v. Bartholome, 989 S.W.2d 238, 241

(Mo. App. W.D. 1999). In fact, a request for sanctions under Rule 55.03(d) will

be properly denied if the request is asserted as a counterclaim rather than in a

separate motion for that purpose. Ingram v. Horne, 785 S.W.2d 735, 739 (Mo.

App. S.D. 1990). The procedural requirements of Rule 55.03(d) are strictly

interpreted and violations thereof are sufficient reason for denying a request for

sanctions. Williams v. Frymire, 186 S.W.3d 912, 923 (Mo. App. S.D. 2006)

                                         11
(affirming the denial of a request for sanctions because the request was not made

in a separate motion); Fuller v. Moore, 356 S.W.3d 287, 292 (Mo. App. E.D.

2011) (affirming the denial of a request for sanctions because the request was not

made in a separate motion). Appellants do not cite any authority permitting the

filing of an independent action for damages under Section 512.205.

      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, 854 S.W.2d

at 381. The essential elements of a claim for negligent misrepresentation are:

          (1) the speaker supplied information in the course of his
          business; (2) because of the speaker's failure to exercise
          reasonable care, the information was 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 hearer suffered a
          pecuniary loss.

Coverdell v. Countrywide Home Loans, Inc., 375 S.W.3d 874, 884 (Mo.

App. S.D. 2012).

      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


                                        12
2009 letter they received after the foreclosure which offered them a forbearance

agreement. The first set of letters was not a representation of fact upon which

Appellants were entitled to rely, and the undisputed material facts show they did

not rely on the post-foreclosure letter to sign a forbearance agreement.

       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 statements 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., 284 S.W.3d 597, 603

(Mo. App. E.D. 2009) (quoting Grossoehme v. Cordell, 904 S.W.2d 392, 397

(Mo. App. W.D. 1995)). Because of the requirement of reliance, a claim of

negligent misrepresentation will not be successful where the plaintiff took the

action which caused the damage before hearing the alleged misrepresentation,

Coverdell, 375 S.W.3d at 885, or where the plaintiff did not take any action or

refrain from taking any action based on the representation, Stein, 284 S.W.3d at

603.

                                          13
      Here, although the letter made a representation that the foreclosure 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, had 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

uncontradicted material facts negate the element of reliance.

      Point X is denied.

                                    Decision

      The trial court's judgment is affirmed.



MARY W. SHEFFIELD, P.J. – OPINION AUTHOR

NANCY STEFFEN RAHMEYER, J. – CONCURS

DON E. BURRELL, J. – CONCURS




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