James Wong v. Bann-Cor Mortgage ( 2015 )

United States Court of Appeals
For the Eighth Circuit
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No. 14-1921
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James G. Wong; Daniel R. Jenson; Wanda D. Jenson; Terry Lovett, formerly
known as Terry M. Brooks; Bradley Beal; Paula Beal; Alfred Celia; Vicki
Musgrave; Patrick Nasi; Natalie Nasi; David Plocek; Stacy Plocek; Terry Rapiach;
Lesa Rapiach
lllllllllllllllllllll Plaintiffs - Appellants
v.
Wells Fargo Bank N.A., formerly and/or as successor to Norwest Bank Minnesota,
N.A., First Union National Bank and/or First Union Trust Company; Bann-Cor
Mortgage; Master Financial, Inc.; Master Financial Asset Securitization Trust
1997-1; Master Financial Asset Securitization Trust 1998-1; Master Financial
Asset Securitization Trust 1998-2
lllllllllllllllllllll Defendants - Appellees
US Bank NA, ND
lllllllllllllllllllll Defendant
Wilmington Trust Company, in its individual capacity, and as trustee of the
Country Wide Home Loan Trust 2001-HLV1, PSB Lending Home Loan Trust
1997-3 and 1997-4, and Master Financial Asset Securitization Trust 1997-1,
1998-1, and 1998-2
lllllllllllllllllllll Defendant - Appellee
Countrywide Home Loans, Inc.
lllllllllllllllllllll Defendant
Countrywide Home Loan Trust 2001-HLV1
lllllllllllllllllllll Defendant - Appellee
Cityscape Home Loan Owner Trust 1997-2; Cityscape Home Loan Owner Trust
1997-3; Cityscape Home Loan Owner Trust 1997-4
lllllllllllllllllllll Defendants
PSB Lending Corporation; PSB Lending Home Loan Owner Trust 1997-3; PSB
Lending Home Loan Owner Trust 1997-4
lllllllllllllllllllll Defendants - Appellees
Residential Funding Company, LLC
lllllllllllllllllllll Defendant
Amaximis Lending, LP; The Bank of New York Mellon, formerly known as The
Bank of New York; Citimortgage, Inc.; Comstar Mortgage Corporation, formerly
known as Accubanc Mortgage Corp.; Franklin Credit Management Company
lllllllllllllllllllll Defendants - Appellees
Ocwen Loan Servicing, LLC
lllllllllllllllllllll Defendant
Old Republic Financial Acceptance Corporation; Real Time Resolutions, Inc.
lllllllllllllllllllll Defendants - Appellees
GMAC Mortgage, LLC
lllllllllllllllllllll Defendant
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J.P. Morgan Chase Bank, NA, individually and/or formerly or as successor to
Bank One, NA and Chase Manhattan Bank; Home Loan Trust 1997-HI3;
Amaximis Company, LLC; JPMorgan Chase Bank, N.A. as successor by merger to
Banc One Financial Services, Inc.; JPMorgan Chase Bank, as successor by merger
to Bank One, N.A.
lllllllllllllllllllll Defendants - Appellees
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: March 10, 2015
Filed: June 18, 2015
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Before MURPHY and SHEPHERD, Circuit Judges, and BROOKS,1 District
Judge.
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SHEPHERD, Circuit Judge.
This class action was filed by borrowers in Missouri who took out second
mortgages on their homes through Bann-Cor Mortgage, Inc. (Bann-Cor), and allege
that Bann-Cor and various assignees and purchasers violated the Missouri Second
Mortgage Loan Act (MSMLA) by charging or collecting impermissible fees. The
district court2 dismissed the borrowers’ complaint, holding that they lacked standing
1
The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas, sitting by designation.
2
The Honorable Fernando J. Gaitan, Jr., United States District Judge for the
Western District of Missouri.
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to pursue their claims against the defendants who did not personally service their
loans and that a three-year statute of limitations barred the action against the
remaining defendants. The district court also found alternate grounds for dismissal
with respect to some defendants, including improper service and failure to state a
claim. The borrowers appeal, and we affirm.
I.
The plaintiffs in this action are a class of borrowers who obtained second
mortgage loans on their homes through Bann-Cor. After Bann-Cor executed the loan
agreements with the borrowers, it sold or assigned the loans and the accompanying
mortgage liens to various purchasers and assignees, the defendants in this action. The
borrowers allege that the defendants, either directly or indirectly, charged, contracted
for, or received fees in the second mortgage loan transactions that were impermissible
under the MSMLA.
This action began nearly 15 years ago when the borrowers first filed this suit
in Missouri state court against Bann-Cor. The borrowers periodically sought leave
to amend the complaint and add additional defendants. After two removals to federal
court and two remands back to state court, the state court granted the defendants’
motion for summary judgment on the grounds that a three-year statute of limitations
barred the borrowers’ claims. The borrowers appealed to the Missouri Court of
Appeals, which, in Schwartz v. Bann-Cor Mortgage, 197 S.W.3d 168 (Mo. Ct. App.
2006), reversed the trial court and held that a six-year limitations period applied and
remanded the case back to the trial court. In 2010, the borrowers filed their sixth
amended complaint, which for the first time added Wells Fargo Bank as a party.
Wells Fargo removed the case to federal court under the Class Action Fairness Act,
and in 2011, the district court denied the borrowers’ motion to remand.
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In 2012, the district court granted a motion to dismiss filed by Citimortgage
and Wells Fargo with respect to loans held by the entity itself and by the entity in its
capacity as trustee, finding the borrowers serving as the named plaintiffs did not have
standing to assert their claims against these defendants. The district court also
granted Old Republic’s motion to dismiss based on a six-year statute of limitations
and granted PSB Lending’s motion to dismiss with respect to one loan based on the
statute of limitations. The court denied the remaining motions to dismiss based on
the statute of limitations.
Shortly thereafter, the district court informed the remaining parties that it
believed the Eighth Circuit decision in Rashaw v. United Consumers Credit Union,
685 F.3d 739 (8th Cir. 2012), cert. denied, 133 S. Ct. 1250 (2013), which held that
a three-year statute of limitations applied to MSMLA claims, could significantly
impact the case. After reviewing additional briefing from the parties, the district
court reconsidered the statute-of-limitations argument and dismissed the majority of
the borrowers’ claims as barred by a three-year statute of limitations, finding Rashaw
to be the most thorough and relevant interpretation of Missouri law. This included
all claims against PSB Lending, Real Time, Franklin Credit Managment, Bank of
New York Mellon, and the claims of named plaintiffs Wong, Jenson, Lovett, Celia,
Musgrave, and Plocek. With respect to defendant Bank One, the court ordered the
borrowers to file a motion for leave to file an eighth amended complaint stating why
the claims against Bank One were not time barred. The borrowers filed the motion,
which the district court denied based on futility before dismissing the complaint as
time barred.
In a separate order, the district court granted Wilmington Trust Company’s
motion to dismiss, finding the borrowers lacked standing to assert their claims, failed
to state a claim under Federal Rule of Civil Procedure 12(b)(6), and failed to effect
proper service with respect to two trusts for which Wilmington Trust Company served
as a trustee. In yet another order, the district court granted JP Morgan Chase’s motion
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for summary judgment and US Bank’s motion to dismiss, both based on the statute
of limitations. Finally, the district court granted a motion to dismiss by Residential
Funding and GMAC Mortgage upon conclusion of their bankruptcy proceedings and
in accordance with their reorganization plans. The district court also dismissed the
complaint against all remaining non-participatory defendants, including Bann-Cor.
The borrowers appeal.
II.
“Federal courts must address questions of standing before addressing the merits
of a case where standing is called into question.” Brown v. Medtronic, Inc., 628 F.3d
451, 455 (8th Cir. 2010). As such, we first address whether the district court erred
in holding that the named borrowers did not have standing to pursue their claims
against defendants Citimortgage, Wilmington Trust Company, and Wells Fargo, with
respect to loans held by the entity itself and by the entity in its capacity as trustee, and
in dismissing the complaint against these defendants. We review a district court’s
dismissal of a complaint for lack of standing de novo. Tarsney v. O’Keefe, 225 F.3d
929, 934 (8th Cir. 2000). Article III limits the jurisdiction of federal courts to only
cases and controversies. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559 (1992).
A case or controversy requires a plaintiff to have standing. Id. Standing requires a
plaintiff: (1) to have suffered a concrete injury in fact, (2) to prove a causal
connection between the injury and the defendant’s allegedly unlawful conduct, and
(3) to show the injury is capable of redressability through a favorable ruling from the
courts. Id. at 560-61.
We agree with the district court that the requisite causal connection between
the alleged charging or collecting of improper fees and the defendants who never
personally serviced or were assigned the named borrowers’ loans is lacking because
these defendants never collected any impermissible fees from the named borrowers.
Nevertheless, the borrowers put forth several theories that they argue allow them to
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evade the traditional Article III standing requirements. First, the borrowers argue that
the class certification order has the effect of conferring standing upon the named
borrowers. This is plainly incorrect. A class certification order does not confer
standing on a plaintiff who otherwise lacks it. See Lewis v. Casey, 518 U.S. 343, 357
(1996) (“That a suit may be a class action . . . adds nothing to the question of
standing, for even named plaintiffs who represent a class must allege and show that
they personally have been injured, not that injury has been suffered by other,
unidentified members of the class to which they belong and which they purport to
represent.” (alteration in original) (internal quotation marks omitted)); Warth v.
Seldin, 422 U.S. 490, 502 (1975) (“Unless these petitioners can thus demonstrate the
requisite case or controversy between themselves personally and respondents, none
may seek relief on behalf of himself or any other member of the class.” (internal
quotation marks omitted)).
Second, the borrowers assert that the so-called “juridical link” doctrine
provides them with standing to pursue their claims. This doctrine allows a named
plaintiff to bring a class action against parties that did not cause the named plaintiff’s
injury if the plaintiffs suffered identical injuries by parties related through a
conspiracy or concerted scheme and suing all parties in one action would be
expeditious. La Mar v. H&B Novelty & Loan Co., 489 F.2d 461, 466 (9th Cir. 1973)
(recognizing the “juridical link” doctrine). The borrowers argue that, under this
doctrine, once a court certifies a class action, standing requirements must be assessed
with reference to the class as a whole, and not with reference to the individual named
plaintiffs. See Payton v. Cnty. of Kane, 308 F.3d 673, 680 (7th Cir. 2002). The
juridical link doctrine does not confer standing on the named borrowers. Although
our court has not previously addressed this doctrine, we agree with other circuits that,
under similar circumstances, have found it inapplicable. See Mahon v. Ticor Title
Ins. Co., 683 F.3d 59, 65-66 (2d Cir. 2012) (finding no juridical link to confer
standing on named plaintiff alleging title insurance company that plaintiff did not
purchase insurance from illegally overcharged in refinancing deals and rejecting
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argument that Article III permits suits against defendants who did not cause injury so
long as one of the defendants in the action harmed the plaintiff); Easter v. Am. W.
Fin., 381 F.3d 948, 962 (9th Cir. 2004) (finding no juridical link to confer standing
on named plaintiffs suing assignees of second mortgages who never held named
plaintiffs’ loans for charging usurious interest rates when there was no evidence of
a conspiracy or a concerted scheme).
Finally, the borrowers assert that the Home Ownership Equity Protection Act
(HOEPA), which purportedly applies to these “high cost” mortgages, confers
standing. But the courts that have considered the issue have uniformly held that
nothing in HOEPA purports to confer standing that is otherwise lacking. See, e.g.,
Faircloth v. Fin. Asset Sec. Corp. Mego Mortg. Homeowner Loan Trust, 87 F. App’x
314, 317 (4th Cir. 2004) (unpublished per curiam) (“HOEPA does not speak to the
question of standing at all.”); Easter, 381 F.3d at 962 (“Nothing in the language of
HOEPA purports to confer standing on a plaintiff to sue a defendant against whom
that plaintiff cannot otherwise assert a cause of action.”). Because the named
borrowers lack standing against the defendants who were not assigned and did not
personally service the named borrowers’ loans, we affirm the district court’s dismissal
of the complaint against Citimortgage, Wilmington Trust Company, and Wells Fargo.
III.
We next consider whether the district court erred in determining that a three-
year statute of limitations governed the borrowers’ claims and in dismissing the
borrowers’ complaint as time barred. Whether the MSMLA imposes a three- or six-
year statute of limitations is a question of state law we review de novo. See Metro.
Express Servs., Inc. v. City of Kan. City, Mo., 71 F.3d 273, 274 (8th Cir. 1995). In
reviewing a district court’s dismissal for failure to state a claim de novo, we accept
all factual allegations in the complaint as true. Illig v. Union Elec. Co., 652 F.3d 971,
976 (8th Cir. 2011). A court may dismiss a complaint under Federal Rule of Civil
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Procedure 12(b)(6) as barred by a statute of limitations if the complaint itself shows
that the claim is time-barred. Id.
The borrowers argue that a six-year statute of limitations applies to their
claims, in accordance with Schwartz, where the Missouri Court of Appeals held that
Missouri’s six-year statute of limitations applies to MSMLA claims. 197 S.W.3d at
178. The borrowers assert that, as a decision from the Missouri Court of Appeals and
in the absence of a Missouri Supreme Court decision, Schwartz is the best
pronouncement of Missouri law and its holding should be applied to this case. It is
a well-recognized rule that federal courts may not reject a state court of appeals
decision solely because a state’s highest court has not decided the matter. See West
v. Am. Tel. & Tel. Co., 311 U.S. 223, 236-37 (1940) (“[A] federal court is not free
to reject the state rule merely because it has not received the sanction of the highest
state court, even though it thinks the rule is unsound in principle or that another is
preferable.”). But this rule is not absolute: “Where an intermediate appellate state
court rests its considered judgment upon the rule of law which it announces, that is
a datum for ascertaining state law which is not to be disregarded by a federal court
unless it is convinced by other persuasive data that the highest court of the state
would decide otherwise.” Id. at 237.
In Rashaw, our court determined that a three-year statute of limitations governs
MSMLA claims. 685 F.3d at 744. After conducting a thorough analysis of both
Missouri case law and legislative history, the court concluded “Schwartz ignored both
relevant legislative history and what should have been controlling (though dated)
Supreme Court precedents.” Id. Although we think this language sufficiently
indicates that our court was “convinced by other persuasive data” that the Missouri
Supreme Court would reach a decision contrary to that of the Missouri Court of
Appeals, if there ever were any confusion about Rashaw’s holding, our court twice
revisited it. See Washington v. Countrywide Home Loans, Inc., 747 F.3d 955, 958
(8th Cir.) (“Since Schwartz ignored controlling precedent by the Supreme Court of
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Missouri as well as pertinent statutory history, Schwartz is not the best evidence of
Missouri law.”), cert. denied, 135 S. Ct. 307 (2014); see also Huffman v. Credit
Union of Tex., 758 F.3d 963, 966 (8th Cir. 2014) (“These same attorneys recently
made the same argument to another panel of this court in Washington v. Countrywide
Home Loans, Inc. After the Supreme Court of Missouri declined to take up the
panel’s certified question whether Schwartz or Rashaw properly reflects Missouri
law, the panel held that Rashaw is controlling Eighth Circuit law. Like the panel in
Washington, we are bound by our decision in Rashaw that the six-year statute of
limitations [] does not apply . . . .” (citations omitted)).
Undeterred in the face of this precedent, the borrowers continue to assert that
we must apply a six-year statute of limitations. We take the opportunity now to
clearly state once and for all: We view Rashaw as a rejection of Schwartz on the
grounds that “other persuasive data,” namely legislative history and Missouri case
law, convinced the Rashaw panel that the Missouri Supreme Court would not reach
the same outcome the Missouri Court of Appeals reached. The Missouri Court of
Appeals decision is thus not the best evidence of Missouri law, and we are bound by
this previous decision of our court. See United States v. Lovelace, 565 F.3d 1080,
1085 (8th Cir. 2009) (“This panel is bound by Eighth Circuit precedent, and cannot
overrule an earlier decision by another panel.” (internal quotation marks omitted)).
A three-year statute of limitations applies to MSMLA claims.
The borrowers further assert that, even if a three-year statute of limitations
generally applies to MSMLA claims, Schwartz’s six-year statute of limitations should
apply to their claims as the “law of the case.” Under the law-of-the-case doctrine, “‘a
court should not reopen issues decided in earlier stages of the same litigation.’” In
re Raynor, 617 F.3d 1065, 1068 (8th Cir. 2010) (quoting Agostini v. Felton, 521 U.S.
203, 236 (1997)). This policy of deference “prevents the relitigation of a settled issue
in a case and requires courts to adhere to decisions made in earlier proceedings in
order to ensure uniformity of decisions, protect the expectations of the parties, and
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promote judicial economy.” Id. (internal quotation marks omitted). Although the
law-of-the-case doctrine binds a court to previous decisions in a particular action, it
is not without its limits: “[T]he doctrine does not apply if the court is convinced that
[its prior decision] is clearly erroneous and would work a manifest injustice.” Pepper
v. United States, 131 S. Ct. 1229, 1250-51 (2011) (second alteration in original)
(internal quotation marks omitted).
The district court at one point found that Schwartz applied as the law of the
case. R. Doc. 395, at 13 n. 11 (“Various defendants argue that a three-year statute of
limitations ought to apply; however, that argument is foreclosed by the Missouri
Court of Appeals decision in Schwartz v. Bann-Cor Mortg., []which is the law of the
case.”). But the district court made this statement in an order filed a week before we
published Rashaw, which changed the legal landscape by concluding Schwartz had
been erroneously decided. And applying Schwartz as law of the case would “work
a manifest injustice” by subjecting defendants to double the limitations period and
thus substantially affecting the defenses upon which the defendants could rely. We
therefore conclude that Schwartz does not apply as the law of the case because it was
erroneously decided and its application would “work a manifest injustice.”
Accordingly, we need not consider the defendants’ remaining arguments that
Schwartz does not apply as law of the case because it was an interlocutory order and
that it cannot bind those defendants who were not parties to the suit when the
Missouri Court of Appeals rendered its decision.
Having determined a three-year statute of limitations governs the borrowers’
claims, we now consider whether the district court erred in dismissing the borrowers’
complaint as time barred. The borrowers first argue that their causes of action did not
accrue at the time of loan origination, but rather accrued when the assignees acquired
or began collecting on the loans. Under Missouri law, a cause of action accrues
“[w]hen the fact of damage becomes capable of ascertainment . . . even if the actual
amount of damage is unascertainable.” Bonney v. Envtl. Eng’g, Inc., 224 S.W.3d
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109, 116 (Mo. Ct. App. 2007) (alterations in original) (internal quotation marks
omitted). “Damage is capable of ascertainment when it can be discovered or is made
known, even if its extent remains unknown.” D’Arcy & Assocs., Inc. v. K.P.M.G.
Peat Marwick, L.L.P., 129 S.W.3d 25, 29 (Mo. Ct. App. 2004). The borrowers’
causes of action accrued with the origination of their loans. The “fact of damage”
would have been “capable of ascertainment” when the loans closed because the
borrowers allege that the impermissible fees were wrapped into the principal amount
of the loan. This would have been capable of discovery by examining the principal
amount of the loan. The three-year statute of limitations thus began to run when the
loans closed, with the latest of the challenged loans closing in 2000. As none of the
participating defendants was added to this action before 2006, all of the borrowers’
claims fall outside of the limitations period.
The borrowers present two final arguments as to why their claims may proceed,
despite asserting them outside of the limitations period. Neither is persuasive. The
borrowers assert that their claims against the defendants relate back to the original
petition against Bann-Cor, which they filed within the limitations period. Under
Missouri Supreme Court Rule 55.33(c), for an amended pleading to relate back to an
original petition, the amended pleading must meet three requirements: (1) the claim
or defense asserted in the amended pleading arose out of the conduct, transaction, or
occurrence described in the original pleading, (2) the party to be added by amendment
received notice of the commencement of the action so as not to be prejudiced in
maintaining a defense, and (3) the party to be added by amendment knew or should
have known that, absent a mistake regarding the proper party, the action would have
been instigated against him. Mo. Sup. Ct. R. 55.33(c); see also Bates v. Law Firm of
Dysart, Taylor, Penner, Lay & Lewandowski, 844 S.W.2d 1, 3 (Mo. Ct. App. 1992)
(providing requirements for relation back under Rule 55.33(c)). The borrowers have
failed to satisfy both the second and third requirements of Rule 55.33(c). With
respect to the second requirement, nothing in the record indicates that the borrowers
notified the defendants of the action before the statute of limitations expired.
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See Webcon Grp., Inc. v. S.M. Props., L.P., 1 S.W.3d 538, 543 (Mo. Ct. App. 1999)
(holding that an amended pleading did not relate back to original petition when the
record provided no evidence that the added defendant received notice of the original
action). With respect to the third requirement, nothing in the record indicates that the
defendants knew or should have known that, but for a mistake in identity, the
borrowers would bring an action against them. See Windscheffel v. Benoit, 646
S.W.2d 354, 357 (Mo. 1983) (en banc) (explaining that a pleading only relates back
if the plaintiff “made a mistake in selecting the proper party to sue, i.e., plaintiff must
have brought an action against the wrong party”); Goodkin v. 8182 Md. Assocs. Ltd.
Partnership, 80 S.W.3d 484, 489 (Mo. Ct. App. 2002) (“Rule [55.33(c)] does not
apply if the plaintiff wants to add a party to the suit. A mistake in failing to add a
party defendant does not trigger relation-back.” (citations omitted)). An evolving
strategy, rather than a mistake in identity, caused the borrowers to add additional
defendants. Both flaws are fatal to the borrowers’ argument that the claims relate
back to the original petition.
The borrowers also assert that HOEPA allows them to evade the time bar
because it allows derivative liability for subsequent assignees or purchasers of
mortgages and the suit against Bann-Cor preserved the claims against derivatively
liable parties. HOEPA imposes derivative liability on assignees of mortgages,
providing that an assignee may be liable for the same offenses as the original lender.
15 U.S.C. § 1641(d). But this imposition of derivative liability has no bearing on the
applicable statute of limitations, and Missouri case law acknowledges as much:
“Borrowers can assert derivative claims against the current holders of the loans,
unless such claims are barred by a statute of limitations.” Schwartz, 197 S.W.3d at
179. This derivative liability does not allow a plaintiff to avoid an applicable statute
of limitations, and we reject the borrowers’ argument to this effect. Because we
conclude that the borrowers’ action is time barred, we need not consider the
defendants’ argument that the borrowers failed to properly substitute the named
defendants for the Doe Defendants and thus cannot pursue their claims. We therefore
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affirm the district court’s determination that a three-year statute of limitations applies
to the borrowers’ MSMLA claims and the dismissal of the complaint as time barred.
IV.
Because we conclude that the district court correctly dismissed the complaint
against Wilmington Trust Company for a lack of standing, we need not consider the
district court’s alternate grounds for dismissing the borrowers’ complaint against this
defendant: that they failed to properly serve Wilmington Trust Company. We also
need not address several other arguments defendants raise for affirming on an
alternate basis.
V.
For the foregoing reasons, we affirm the judgment of the district court.
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