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Williams v. HSBC Bank USA, N.A.

Court of Appeals of Missouri, Southern District, Second Division

April 14, 2015

DAVE R. WILLIAMS and CANDICE J. WILLIAMS, Plaintiffs-Appellants,
v.
HSBC BANK USA, N.A., Defendant-Respondent

Page 837

[Copyrighted Material Omitted]

Page 838

APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY. Honorable Michael J. Cordonnier, Circuit Judge.

FOR APPELLANT: ROBERT M. SWEERE, Springfield, MO.

FOR RESPONDENT: MATTHEW D. GULETZ, St. Louis, MO.

NANCY STEFFEN RAHMEYER, J. - CONCURS. DON E. BURRELL, J. - CONCURS.

OPINION

Page 839

MARY W. SHEFFIELD, P.J.

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 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

Page 840

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 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, ...


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