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Gardner v. Bank of America, N.A.

Court of Appeals of Missouri, Eastern District, Third Division

May 5, 2015

NANCY GARDNER, et al., Appellants,
v.
BANK OF AMERICA, N.A., et al., Respondents

Page 643

Appeal from the Circuit Court of St. Louis County. Honorable Mark D. Seigel.

FOR RESPONDENT DOUG STAHLSCHMIDT: Brett B. Caban, Nicholas B. Schopp, AEGIS PROFESSIONAL SERVICES -- LAW PRACTICE GROUP, St. Louis, Missouri.

FOR RESPONDENT BANK OF AMERICA: Brian C. Walsh, Rhiana A. Luaders, BRYAN CAVE LLP, St. Louis, Missouri.

FOR RESPONDENT U.S. BANK NATIONAL ASSOCIATION: Booker T. Shaw, Matthew J. Landwehr, Sara L. Chamberlain, THOMPSON COBURN LLP, St. Louis, Missouri.

Kurt S. Odenwald, Presiding Judge. Robert G. Dowd, Jr., Concurs. Gary M. Gaertner, Jr., Concurs.

OPINION

Page 644

Kurt S. Odenwald, Presiding Judge.

Introduction

Appellants, a group of homeowners, appeal from the judgment of the trial court dismissing their claims against various mortgage brokers and lenders for declaratory judgment, fraud, conspiracy to defraud, and violations of the Missouri Merchandising Practice Act (" MMPA" ). Appellants challenge the dismissal of their claims on the ground that their Second Amended Petition set forth a short and plain statement of the facts showing their entitlement to relief. As to their claims for fraud and conspiracy to defraud, Appellants additionally assert that Respondents waived any objection to the particularity of their pleadings by failing to file a motion for more definite statement. Because of the pleading deficiencies of Appellants' Second Amended Petition and the deficiencies in the briefing on Point Four on appeal, we affirm the trial court's judgment dismissing Appellants' claims.

Factual and Procedural Background

On April 26, 2013, sixteen homeowners (" Appellants" ) sued several mortgage brokers and lenders for declaratory judgment, fraud, conspiracy to defraud, and violations of the MMPA.[1] Appellants' Petition

Page 645

generally alleged that defendant Brian Gillick (" Gillick" ), an employee of defendant D & D Financial, induced Appellants to refinance their home mortgages with the false promise that refinancing would save Appellants a significant amount of money. The Petition further alleged that Gillick altered various loan closing documents to increase rates and add fees without Appellants' knowledge, and then forged Appellants' signatures on such documents. Finally, the Petition alleged that Gillick conspired with the various defendant lenders to prevent Appellants from learning of the forgeries and thereby prevent Appellants from halting the refinancing transactions.

On May 28, 2013, Appellants filed their First Amended Petition which reasserted the same claims for declaratory judgment, fraud, conspiracy to defraud, and violations of the MMPA. Defendants Bank of America and U.S. Bank each moved to dismiss the First Amended Petition pursuant to Rule 55.27(a)(6) for failure to state a claim upon which relief can be granted. The trial court treated the defendants' motions to dismiss as motions for more a definite statement. The trial court then granted the defendants' motions and granted Appellants leave to amend and replead their claims against Bank of America and U.S. Bank.

Appellants filed a Second Amended Petition on April 17, 2014. The Second Amended Petition set forth the same four claims for declaratory judgment, fraud, conspiracy to defraud, and violations of the MMPA. Bank of America and U.S. Bank each filed a motion to dismiss the Second Amended Petition asserting that Appellants failed to incorporate new factual allegations sufficient to state a claim and that the Second Amended Petition still suffered from multiple pleading deficiencies. Following a hearing on the matter, the trial court granted the motions to dismiss finding that Appellants' Second Amended Petition failed to adequately plead causes of action against Bank of America and U.S. Bank.

On July 8, 2014, Defendant Doug Stahlschmidt (" Stahlschmidt" ) filed a motion for judgment on the pleadings, or, in the alternative, a motion to dismiss. The trial court found that the claims against Stahlschmidt were identical to the claims against Bank of America and U.S. Bank that it previously had dismissed for failure to state a claim. Accordingly, the trial court granted Stahlschmidt's motion to dismiss. In the same order, the trial court dismissed all claims against the remaining defendants for lack of service. Appellants now appeal the trial ...


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