Todd Hallquist v. SunTrust Mortgage, Inc.

United States Court of Appeals
For the Eighth Circuit
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No. 12-3281
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Todd L. Hallquist; Teresa R. Hallquist
lllllllllllllllllllll Plaintiffs - Appellants
v.
United Home Loans, Inc.
lllllllllllllllllllll Defendant
SunTrust Mortgage, Inc.; Federal National Mortgage Association; Millsap &
Singer, PC
lllllllllllllllllllll Defendants - Appellees
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Appeal from United States District Court
for the Western District of Missouri - Jefferson City
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Submitted: April 9, 2013
Filed: May 17, 2013
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Before RILEY, Chief Judge, BYE and BENTON, Circuit Judges.
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BENTON, Circuit Judge.
Todd L. and Teresa R. Hallquist owned a house in Missouri. They had a loan
secured by a Deed of Trust on the house. The Hallquists defaulted. The house was
sold at a non-judicial foreclosure sale. The Hallquists sued the lender, the holder of
the Deed of Trust at the time of sale, and the successor trustee. The district court1
granted the defendants’ motions to dismiss. Hallquist v. United Home Loans, Inc.,
No. 11-04265-CV-C, 2012 WL 1980656, at *6 (W.D. Mo. June 1, 2012). Having
jurisdiction under 28 U.S.C. § 1291, this court affirms.
I.
In October 2008, the Hallquists borrowed $211,000 from United Home Loans.
To secure the loan, they pledged a Deed of Trust on their house in Camdenton,
Missouri. The Deed of Trust conveyed the beneficial interest to Mortgage Electronic
Registration Services, Inc. In 2011, MERS conveyed its interest to SunTrust
Mortgage, Inc., which appointed Millsap & Singer, PC as successor trustee.
Millsap conducted a non-judicial foreclosure sale of the house on August 25,
2011. Millsap submitted the winning credit bid on behalf of SunTrust. After the sale,
a Successor Trustee’s Deed Under Foreclosure was recorded, listing the Federal
National Mortgage Association (Fannie Mae) as the buyer at the sale.
In October 2011, the Hallquists filed a five-count suit alleging various
improprieties in the foreclosure sale. The Hallquists also sought to quiet title and to
enjoin eviction. The defendants moved to dismiss the suit. The district court granted
the motions and entered judgment. Hallquist, 2012 WL 1980656, at *6.
1
The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.
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The Hallquists filed a motion to reconsider, challenging the dismissal of Count
II (breach of fiduciary duty) and Count III (quiet title). The district court denied it.
The Hallquists filed a notice of appeal, which said they were appealing the denial of
the motion to reconsider. In their briefing to this court, the Hallquists challenge the
district court’s underlying dismissal.
II.
This court must first determine what issues the Hallquists may appeal. The
defendants contend that only the denial of the motion to reconsider2 is on appeal
because it was the only order identified in the notice of appeal. By their statement of
the issues, the Hallquists seek a review of the underlying dismissal. This distinction
is significant for the standard of review. “This court reverses a denial of a motion for
reconsideration ‘only for a clear abuse of discretion’ . . . .” United States ex rel.
Raynor v. Nat’l Rural Utils. Coop. Fin., Corp., 690 F.3d 951, 957 (8th Cir. 2012),
quoting Matthew v. Unum Life Ins. Co. of Am., 639 F.3d 857, 863 (8th Cir. 2011).
On the other hand, this court reviews de novo the grant of a motion to dismiss.
Turkish Coal. of Am., Inc. v. Bruininks, 678 F.3d 617, 623 (8th Cir. 2012), citing
Owen v. Gen. Motors Corp., 533 F.3d 913, 918 (8th Cir. 2008).
“To vest [this court] with jurisdiction over an appeal, the appellant must
comply with Federal Rule of Appellate Procedure 3.” Martin v. Am. Family Mut.
Ins. Co., 157 F.3d 580, 581 (8th Cir. 1998) (per curiam). An appellant must file a
notice of appeal that “designate[s] the judgment, order, or part thereof being
appealed.” Fed. R. App. P. 3(c)(1)(B). “Rule 3’s dictates are jurisdictional in nature,
2
Although the Federal Rules of Civil Procedure do not contemplate a “motion
to reconsider,” the Hallquists’ motion is treated as a motion to alter or amend
judgment under Federal Rule of Civil Procedure 59(e). Auto Servs. Co. v. KPMG,
LLP, 537 F.3d 853, 855 (8th Cir. 2008).
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and their satisfaction is a prerequisite to appellate review.” Smith v. Barry, 502 U.S.
244, 248 (1992), citing Torres v. Oakland Scavenger Co., 487 U.S. 312, 316-17
(1988). “Rule 3(c) ‘is more than a mere technicality,’ and failure to comply with it
‘may create a jurisdictional bar to appeal.’” USCOC of Greater Mo. v. City of
Ferguson, Mo., 583 F.3d 1035, 1040 (8th Cir. 2009), quoting ELCA Enters., Inc. v.
Sisco Equip. Rental & Sales, Inc., 53 F.3d 186, 189 (8th Cir. 1995); see also
Burgess v. Suzuki Motor Co., 71 F.3d 304, 306 (8th Cir. 1995) (“The requirement
of Federal Rule of Appellate Procedure 3(c) that a notice of appeal ‘designate the
judgment, order, or part thereof appealed from’ is a jurisdictional prerequisite of the
appellate court.”). The Hallquists’ Notice of Appeal indicates they are appealing “the
order entered August 27, 2012 that denied Plaintiff’s Motion to Reconsider.” The
defendants thus conclude that appellate jurisdiction is limited to the motion to
reconsider.
This court liberally construes notices of appeal. E.g., USCOC, 583 F.3d at
1040, citing Berdella v. Delo, 972 F.2d 204, 207 (8th Cir. 1992). “Although a court
may construe the Rules liberally in determining whether they have been complied
with, a court may not waive the jurisdictional requirement of Rule 3 if it finds that it
has not been met.” Burgess, 71 F.3d at 306, citing Torres, 487 U.S. at 317.
“Permitting imperfect but substantial compliance with a technical requirement is not
the same as waiving the requirement altogether as a jurisdictional threshold.” Torres,
487 U.S. at 315-16. This court has jurisdiction over the underlying order if the
appellant’s intent to challenge it is clear, and the adverse party will suffer no
prejudice if review is permitted. E.g., USCOC, 583 F.3d at 1040. Generally, “a
notice which manifests an appeal from a specific district court order or decision
precludes an appellant from challenging an order or decision that he or she failed to
identify in the notice.” Id., quoting Parkhill v. Minn. Mut. Life Ins. Co., 286 F.3d
1051, 1058 (8th Cir. 2002). However, “[e]ven when the notice of appeal is deficient,
jurisdiction may be established by a properly filed appeal information form (required
by Local Rule 3B) which indicates the appellant’s intent to appeal a particular order.”
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Id. at 1040 n.4, citing ELCA, 53 F.3d at 189; see also Burgess, 71 F.3d at 307 (“This
court, in determining the scope of this appeal, can rely on both the notice of appeal
and appeal information form.”).3
Here, the Hallquists filed their appeal information form on the same day as the
notice of appeal. The form listed the following issues for appeal:
1. Trial Court erred in dismissing Plaintiff’s claim to quiet title.
2. Trial Court erred in dismissing Plaintiff’s claim for breach of
fiduciary duty.
3. Trial Court erred in dismissing Plaintiff’s claim for negligence per se.
4. Trial Court erred in dismissing Plaintiff’s claim for violations of
RESPA.
5. Trial Court erred in dismissing Plaintiff’s claim for injunctive relief.
This court faced a similar situation in Burgess. There, the appellant’s notice
of appeal listed only a motion for new trial. However, “the appeal information form
filed with his notice of appeal liste[d] specific errors in jury instructions and
evidentiary rulings.” Burgess, 71 F.3d at 306. “Burgess’s listing of the specific
errors on the appeal information form shows that he intended to appeal the judgment
and not merely the order denying the motion for new trial.” Id. at 307.4 So too here,
3
“Admittedly, Form A is not itself jurisdictional, and cannot independently
provide this court with jurisdiction. If Form A is filed within the thirty days
permitted for the notice of appeal, however, we find that it can adequately supplement
or amend the notice of appeal so as to vest this court with jurisdiction to address a
particular order.” ELCA, 53 F.3d at 189.
4
This court has refused to consider appeal information forms, but has done so
in cases where the form is filed after the deadline to appeal has passed. See, e.g., Trs.
of Electricians’ Salary Deferral Plan v. Wright, 688 F.3d 922, 925 n.2 (8th Cir.
2012) (“Although Walker’s appeal Form A indicated Walker’s intent to appeal the
denial of counsel, Walker’s Form A was filed some eight months after her notice of
appeal, and well after the time period for appeal passed. In order for Form A to be
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where the appeal information form demonstrated the Hallquists’ intent to appeal the
underlying judgment. The defendants have not demonstrated any prejudice if review
is permitted. They were on notice of the Hallquists’ intent as expressed in the appeal
information form.
Immediately above the listed issues on the appeal information form is the
following statement:
LIST OF ISSUES ON APPEAL (For administrative purposes). You
may indicate that this also serves as your statement of issues under
FRAP 10(b)(3). _____Yes. __T__No.
Because the Hallquists checked “no,” the defendants suggest that the form did
not give notice of an intent to appeal the underlying judgment. This court disagrees.
Rule 10(b)(3) addresses identifying the issues in order to ensure the correct portion
of the transcript is ordered. See Fed. R. App. P. 10(b)(3). Even though the
Hallquists checked “no,” the rest of the form identifies the issues they intended to
appeal.
This court has jurisdiction over the underlying judgment. The defendants also
assert that if this court has jurisdiction, it should only include the claims for quiet title
and breach of fiduciary duty – the two addressed in the Hallquists’ motion to
considered part of the notice of appeal, it must be filed within the time constraints for
the notice of appeal.”); USCOC, 583 F.3d at 1040 n.4 (“Since USCOC filed its appeal
information form more than thirty days after the notice of appeal, it is insufficient to
cure the defect in its notice.”); Martin, 157 F.3d at 581 (“[T]he agents did not file
their appeal information form within the thirty-day appeal period . . . .”). But see
Hawkins v. City of Farmington, 189 F.3d 695, 704 (8th Cir. 1999) (“Moreover, the
appeal information form, although filed after the thirty days permitted for the notice
of appeal, was nonetheless filed well before either brief was due. That form made it
clear that both orders were being appealed.”).
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reconsider. Not so. All five counts were listed on the appeal information form, and
will be considered.
III.
The Hallquists make three arguments, but appear to challenge the court’s ruling
on only the counts to quiet title and for breach of fiduciary duty. “Claims not raised
in an opening brief are deemed waived.” FTC v. Neiswonger, 580 F.3d 769, 775 (8th
Cir. 2009), quoting Jenkins v. Winter, 540 F.3d 742, 751 (8th Cir. 2008). To the
extent the Hallquists did intend to challenge other counts, this court affirms for the
reasons articulated in the district court’s well-reasoned order. Hallquist, 2012 WL
1980656, at *1-6.
The counts properly challenged are reviewed de novo, because they were
dismissed for failure to state a claim. See Turkish Coal., 678 F.3d at 623, citing
Owen, 533 F.3d at 918. “To survive a motion to dismiss, a complaint must plead
‘enough facts to state a claim to relief that is plausible on its face.’” Gomes v. Am.
Century Cos., Inc., 710 F.3d 811, 815 (8th Cir. 2012), quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
A.
The Hallquists argue that the district court “erred in deciding that Appellants
have no standing to challenge the accuracy of a Trustee’s Deed.” They allege that the
foreclosure sale was improperly conducted, so they retain superior title. The
Hallquists correctly note that they have standing to challenge the foreclosure sale if
they would have superior title but for that sale. See, e.g., City of St. Louis v. K&K
Invs., Inc., 21 S.W.3d 891, 895 (Mo. App. 2000). As the district court noted, “A
plaintiff in an action to quiet title has the burden to prove title superior to the other
party, not superior to the whole world, and must prevail on the strength of his own
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title and not on any weakness in the title of the other party.” Hallquist, 2012 WL
1980656, at *1, quoting Ollison v. Vill. of Climax Springs, 916 S.W.2d 198, 203
(Mo. banc 1996).
The district court did not dismiss the entirety of the Hallquists’ quiet-title claim
because of standing. Rather, the court substantively dismissed all but one of the
Hallquists’ alleged improprieties of the foreclosure sale. The court then ruled that the
Hallquists lacked standing to challenge Fannie Mae’s designation as purchaser.
The district court’s rulings were correct. The Hallquists do lack standing to
challenge the Fannie Mae designation. Title transferred when the bid was accepted.
In re Tucker, 290 B.R. 134, 137 (E.D. Mo. Bankr. 2003) (“At the auction, the
acceptance of the bid by the trustee constitutes an executory contract of sale. See
Ferguson v. Soden, 19 S.W. 727 (Mo. 1892). . . . As between the parties, the title is
considered to have vested from the time the contract was made. Schmidt v. City of
Tipton, 89 S.W.2d 569, 572 (Mo. App. 1936).”). The Hallquists were then free to
challenge the sale, but not issues arising after the sale. Once Millsap accepted
SunTrust’s bid, title vested in SunTrust. That someone allegedly failed to record the
assignment from SunTrust to Fannie Mae is of no consequence to the Hallquists, who
had already been divested of title.
The district court also ruled correctly on the foreclosure-sale procedures.
Missouri law permits a credit bid to be entered – even when the deed requires, as it
did here, that the sale be for “cash.” Martin v. Lorren, 890 S.W.2d 352, 357 (Mo.
App. 1994), citing Webb v. Salisbury, 39 S.W.2d 1045, 1052 (Mo. 1931). Also
contrary to the Hallquists’ assertion, Missouri law allows a trustee to place a bid at
the foreclosure auction on behalf of the noteholder. Boatmen’s Bank of Jefferson
Cnty. v. Cmty. Interiors, Inc., 721 S.W.2d 72, 77 (Mo. App. 1986).
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The foreclosure sale’s procedures complied with Missouri law. Further, the
district court properly ruled that the Hallquists’ challenge to activities after the
foreclosure sale lacked standing.
B.
The Hallquists challenge the district court’s dismissal of the breach-of-
fiduciary-duty claim. “When breach of fiduciary duty is asserted as a tort claim, as
here, the proponent must establish that a fiduciary duty existed between it and the
defending party, that the defending party breached the duty, and that the breach
caused the proponent to suffer harm.” Zakibe v. Ahrens & McCarron, Inc., 28
S.W.3d 373, 381 (Mo. App. 2000), citing Preferred Physicians Mut. Mgmt. Grp. v.
Preferred Physicians Mut. Risk Retention, 918 S.W.2d 805, 810 (Mo. App. 1996).
The Hallquists allege that three of Millsap’s acts caused them damage. First,
they attack Millsap’s willingness to accept a credit bid. As discussed, this is
permissible. Martin, 890 S.W.2d at 357, citing Webb, 39 S.W.2d at 1052.
Second, the Hallquists contend that naming Fannie Mae as the purchaser at the
sale allowed it to bring an unlawful-detainer action as opposed to an ejectment action.
The Hallquists are correct that they cannot challenge title issues in an unlawful-
detainer action, as it adjudicates only lawful possession. Wells Fargo Bank, N.A. v.
Smith, 392 S.W.3d 446, 454-55 (Mo. banc 2013); §§ 534.200, 534.210 RSMo.
“When any person willfully and without force holds over any lands, tenements or
other possessions . . . after a mortgage or deed of trust has been foreclosed and the
person has received written notice of a foreclosure . . . such person is guilty of an
‘unlawful detainer.’” § 534.030.1 RSMo. The statute does not limit asserting an
unlawful detainer action to only the actual purchaser at the sale. Moreover, the
recording occurred after a valid sale, and after the Hallquists lost their rights in the
property. The trustee, Millsap, is required to act with “complete integrity, fairness,
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and impartiality toward both the debtor and the creditor.” Spires v. Edgar, 513
S.W.2d 372, 378 (Mo. banc 1974). The trustee must conduct a fair and impartial sale.
Lunsford v. Davis, 254 S.W. 878, 885 (Mo. 1923), quoting Axman v. Smith, 57 S.W.
105, 106 (Mo. 1900). The Hallquists cite no authority that the recording was a breach
of this duty (at any rate, the alleged breach occurred after Millsap’s duties to the
Hallquists were complete). The Hallquists cite Smith v. Haley, 314 S.W.2d 909 (Mo.
1958), to argue that the trustee’s duties do not cease at the time of sale. There, the
trustee purchased the property 30 minutes after the foreclosure sale. Smith, 314
S.W.2d at 913. The court held that this transaction rendered the entire sale void as
fraudulent, especially considering the trustee purchased the property for 50 percent
more than the foreclosure-sale price. Id. at 914-15. Here, the Hallquists offer no
evidence of fraud.
Third, the Hallquists allege that Millsap “avoided extra legal and recording fees
by failing to record the transfer from SunTrust to FNMA.” This does not damage the
Hallquists and thus is not a breach of fiduciary duty.
C.
The Hallquists argue that the district court “erred in deciding that Appellants
had failed to plead facts that proved a duty to investigate the transaction on the part
of the fiduciary trustee.” “[I]n the absence of unusual circumstances known to the
trustee, he may, upon receiving a request for foreclosure from the creditor, proceed
upon that advice without making any affirmative investigation and without giving any
special notice to the debtor.” Spires, 513 S.W.2d at 378-79.
Rather than listing facts alerting Millsap to “unusual circumstances,” the
Hallquists repeat their litany of alleged breaches of fiduciary duties. None of these
arguments are persuasive. As the district court explained, “SunTrust was the holder
of the Note at the time of the foreclosure sale, was entitled to enforce the Note, and
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had the power of sale and foreclosure conferred upon it by the Deed of Trust.”
Hallquist, 2012 WL 1980656, at *2, citing §§ 400.1-201(20); 400.3-301 RSMo;
Hobson v. Wells Fargo Home Mortg., No. 2:11CV00010, 2001 WL 3704815, at *2
(E.D. Mo. Aug. 24, 2011). Millsap was allowed to accept a credit bid. Martin, 890
S.W.2d at 357, citing Webb, 39 S.W.2d at 1052. As explained, the Hallquists’
challenges to Fannie Mae’s designation are also unsuccessful.
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The judgment of the district court is affirmed.
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